As filed with the Securities and Exchange Commission on March 9, 1998
Registration No. 333-46935
==============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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AMENDMENT NO. 1 TO
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
DELAWARE 36-3145972
(State or other jurisdiction (I.R.S. Employer Identification Number)
of incorporation or organization)
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1585 Broadway
New York, New York 10036
(212) 761-4000
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
------------
Christine A. Edwards, Esq.
Executive Vice President, Chief Legal
Officer and Secretary
Morgan Stanley, Dean Witter, Discover &
Co.
1585 Broadway
New York, New York 10036
(212) 761-4000
(Name, address, including zip code, and telephone number, including area code, of agent for service)
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Copies To:
Joseph W. Armbrust, Esq. John M. Brandow, Esq.
Brown & Wood LLP Davis Polk & Wardwell
One World Trade Center 450 Lexington Avenue
New York, New York 10048 New York, New York 10017
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</TABLE>
Approximate date of commencement of proposed sale to the
public: As soon as practicable after this registration statement becomes
effective.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans, please check the
following box. [ ]
If any of the securities being registered on this Form are to
be offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, as amended (the "Securities Act"), other than
securities offered only in connection with dividend or interest reinvestment
plans, check the following box. [X]
If this form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering.[ ]
If this form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant
to Rule 434, please check the following box. [ ]
The Registrant hereby amends this registration statement on
such date or dates as may be necessary to delay its effective date until the
Registrant shall file a further amendment which specifically states that this
registration statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act or until the registration statement shall
become effective on such date as the Securities and Exchange Commission (the
"Commission"), acting pursuant to Section 8(a), may determine.
Pursuant to Rule 429 of the General Rules and Regulations under
the Securities Act, the Prospectus which is a part of this registration
statement is a combined Prospectus relating also to (i) $1,281,319,143 of
securities registered and remaining unissued under registration statement no.
333-27919, (ii) $1,219,725,000 of securities registered and remaining unissued
under registration statement no. 33-89748 and (iii) $2,000,000,000 of
securities registered and remaining unissued under registration statement
no. 333-07947, in each case, previously filed by the Registrant and
declared effective by the Commission.
==============================================================================
Prospectus (Subject to Completion, Issued March 9, 1998)
$12,501,044,143
Morgan Stanley, Dean Witter, Discover & Co.
DEBT SECURITIES
WARRANTS
PREFERRED STOCK
PURCHASE CONTRACTS
UNITS
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Morgan Stanley, Dean Witter, Discover & Co. (the "Company") may
offer and issue from time to time its debt securities ("Debt Securities") in
one or more series. Debt Securities may be issuable in registered form without
coupons or in bearer form with or without coupons attached. The Company also
may issue and sell warrants to purchase Debt Securities ("Debt Warrants") or
to purchase or sell (i) securities of an entity unaffiliated with the Company,
a basket of such securities, an index or indices of such securities or any
combination of the above, (ii) currencies or composite currencies or (iii)
commodities ("Universal Warrants," and together with Debt Warrants, the
"Warrants"), as set forth in the applicable Prospectus Supplement on terms to
be determined at the time of sale. The Company also may offer and issue from
time to time purchase contracts ("Purchase Contracts") requiring the holders
thereof to purchase or sell (i) securities of an entity unaffiliated with the
Company, a basket of such securities, an index or indices of such securities
or any combination of the above, (ii) currencies or composite currencies or
(iii) commodities, as set forth in the applicable Prospectus Supplement on
terms to be determined at the time of sale. The Company may satisfy its
obligations, if any, with respect to any Universal Warrants or Purchase
Contracts by delivering the underlying securities, currencies or commodities
or, in the case of underlying securities or commodities, the cash value
thereof, as set forth in the applicable Prospectus Supplement. Debt
Securities, Purchase Contracts and Warrants or any combination thereof may be
offered in the form of Units ("Units"). Units may be issued as Definitive
Units or Book-Entry Units.
The Company will offer Debt Securities, Warrants, Purchase
Contracts and Units to the public on terms determined by market conditions.
Debt Securities, Warrants, Purchase Contracts and Units may be sold for U.S.
dollars, foreign denominated currency or currency units; principal of and any
interest on Debt Securities and cash amounts payable with respect to Warrants
or Purchase Contracts may likewise be payable in U.S. dollars, foreign
denominated currency or currency units, in each case, as the Company
specifically designates.
The Company may also offer and issue from time to time in one
or more series its Preferred Stock, par value $0.01 per share, on terms to be
determined at the time of sale. The Debt Securities, Warrants, Purchase
Contracts, Units and Preferred Stock are hereinafter collectively referred to
as the "Securities."
The accompanying Prospectus Supplement will set forth the
specific terms of the Securities, including (i) in the case of Debt
Securities, the ranking as senior or subordinated Debt Securities, the
specific designation, aggregate principal amount, purchase price, maturity,
redemption terms, interest rate (or manner of calculation thereof), time of
payment of interest (if any), terms for any conversion or exchange (including
the terms relating to the adjustment thereof), listing (if any) on a
securities exchange and any other specific terms of the Debt Securities, (ii)
in the case of Warrants, whether such Warrants are Debt Warrants or Universal
Warrants, and in the case of Universal Warrants, the (a) security, basket of
securities, index or indices of securities, (b) currencies or composite
currencies or (c) commodities, underlying such Universal Warrants and, in any
case, the exercise price and other specific terms of the Warrants, (iii) in
the case of Purchase Contracts, the (a) security, basket of securities, index
or indices of securities, (b) currencies or composite currencies or (c)
commodities, underlying such Purchase Contracts and other specific terms of
such Purchase Contracts, (iv) in the case of Units, the particular combination
of Purchase Contracts, Warrants and Debt Securities comprising such Units and
any other specific terms of such Units and (v) in the case of a particular
series of Preferred Stock, the specific designation, the aggregate number of
shares offered, the dividend rate (or manner of calculation thereof), the
dividend periods (or manner of calculation thereof), the stated value of the
shares of such series, the voting rights of the shares of such series, whether
and on what terms the shares of such series may be redeemed at the option of
the Company, whether depositary shares representing shares of such series of
Preferred Stock will be offered and if so, the fraction of a share of
Preferred Stock represented by each depositary share, listing (if any) on a
securities exchange and any other specific terms of such series of Preferred
Stock being offered. The accompanying Prospectus Supplement will also set
forth the name of and compensation to each dealer, underwriter or agent (if
any) involved in the sale of the Securities being offered and the managing
underwriters with respect to any Securities sold to or through underwriters.
Any such underwriters (and any representative thereof), dealers or agents in
the United States will include Morgan Stanley & Co. Incorporated ("MS & Co.")
and/or Dean Witter Reynolds Inc. ("DWR") and any such underwriters (and any
representative thereof), dealers or agents outside the United States will
include Morgan Stanley & Co. International Limited ("MSIL") or other
affiliates of the Company.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
------------
Securities may be offered through dealers, underwriters or
agents designated from time to time, as set forth in the accompanying
Prospectus Supplement. Net proceeds to the Company will be the purchase price
in the case of sales to a dealer, the public offering price less discount in
the case of sales to an underwriter or the purchase price less commission in
the case of sales through an agent -- in each case, less other expenses
attributable to issuance and distribution. See "Plan of Distribution" for
possible indemnification arrangements for dealers, underwriters and agents.
Following the initial distribution of a series of Securities,
MS & Co., MSIL, DWR and other affiliates of the Company may offer and sell
previously issued Securities in the course of their businesses as
broker-dealers (subject, in the case of Preferred Stock and Depositary Shares,
to obtaining any necessary approval of The New York Stock Exchange for any
such offers and sales by MS & Co. and DWR). MS & Co., MSIL, DWR and such
other affiliates may act as a principal or agent in such transactions. This
Prospectus and the accompanying Prospectus Supplement may be used by MS & Co.,
MSIL, DWR and such other affiliates in connection with such transactions. Such
sales, if any, will be made at varying prices related to prevailing market
prices at the time of sale.
------------
Information contained herein is subject to completion or
amendment. A registration statement relating to these securities has been
filed with the Securities and Exchange Commission. These securities may not
be sold nor may offers to buy be accepted prior to the time the registration
statement becomes effective. This prospectus shall not constitute an offer to
sell or the solicitation of an offer to buy nor shall there be any sale of
these securities in any State in which such offer, solicitation or sale would
be unlawful prior to registration or qualification under the securities laws
of any such State.
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MORGAN STANLEY DEAN WITTER
, 1998
No person has been authorized to give any information or to
make any representations other than those contained or incorporated by
reference in this Prospectus and, if given or made, such information or
representations must not be relied upon as having been authorized by the
Company or any underwriter, dealer or agent. This Prospectus does not
constitute an offer to sell or a solicitation of an offer to buy Securities by
anyone in any jurisdiction in which such offer or solicitation is not
authorized or in which the person making such offer or solicitation is not
qualified to do so or to any person to whom it is unlawful to make such offer
or solicitation.
------------
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports and other information with the Securities
and Exchange Commission (the "Commission"). Reports, proxy statements and
other information filed by the Company with the Commission can be inspected
and copied at the public reference facilities maintained by the Commission at
Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549 or at its Regional
Offices located at Suite 1400, Citicorp Center, 500 West Madison Street,
Chicago, Illinois 60661 and at Seven World Trade Center, 13th Floor, New York,
New York 10048, and copies of such material can be obtained from the Public
Reference Section of the Commission, 450 Fifth Street, N.W., Washington, D.C.
20549, at prescribed rates. In addition, the Commission maintains a Website
that contains reports, proxy and other information regarding registrants that
file electronically, such as the Company. The address of the Commission's
Website is http:/www.sec.gov. The Company's Common Stock, par value $0.01 per
share (the "Common Stock"), is listed on the New York Stock Exchange, Inc.
(the "NYSE") and the Pacific Exchange, Inc. Reports, proxy statements and
other information concerning the Company can be inspected at the offices of
the NYSE, 20 Broad Street, New York, New York 10005 and the Pacific Exchange,
Inc., 301 Pine Street, San Francisco, California 94104 or 233 South Beaudry
Avenue, Los Angeles, California 90012.
This Prospectus constitutes a part of a Registration Statement
filed by the Company with the Commission under the Securities Act of 1933, as
amended (the "Securities Act"). This Prospectus omits certain of the
information contained in the Registration Statement in accordance with the
rules and regulations of the Commission. Reference is hereby made to the
Registration Statement and related exhibits for further information with
respect to the Company and the Securities. Statements contained herein
concerning the provisions of any document are not necessarily complete and, in
each instance, reference is made to the copy of such document filed as an
exhibit to the Registration Statement or otherwise filed with the Commission.
Each such statement is qualified in its entirety by such reference.
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents previously filed with the Commission
under the Exchange Act by the Company are incorporated herein by reference:
(a) Annual Report on Form 10-K for the fiscal year ended
November 30, 1997; and
(b) Current Reports on Form 8-K dated December 8, 1997, January
7, 1998 and February 12, 1998.
All documents filed by the Company pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this
Prospectus and prior to the later of (i) the termination of the offering of
the Securities and (ii) the date on which MS & Co., MSIL, DWR and other
affiliates of the Company cease offering and selling previously issued
Securities shall be deemed to be incorporated by reference in this Prospectus
and to be a part hereof from the date of filing of such documents. Any
document incorporated or deemed to be incorporated by reference herein has not
been nor shall be submitted for review under the clearance procedures of the
Commission des Operations de Bourse of the Paris Bourse, except as required in
connection with the listing of any Securities on the Paris Bourse.
Any statement contained herein or in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified
or superseded for purposes of this Prospectus to the extent that a statement
contained herein or in any subsequently filed document that also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Prospectus.
Copies of the above documents (excluding exhibits) may be
obtained upon request without charge from the Company, 1585 Broadway, New
York, New York 10036, Attention: Investor Relations (telephone number (212)
762-8131).
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CERTAIN PERSONS PARTICIPATING IN THE OFFERING OF THE SECURITIES
MAY ENGAGE IN TRANSACTIONS THAT STABILIZE, MAINTAIN OR OTHERWISE AFFECT THE
PRICE OF THE SECURITIES OR ANY SECURITIES THE PRICES OF WHICH MAY BE USED TO
DETERMINE PAYMENTS ON THE SECURITIES. SPECIFICALLY, THE AGENTS SPECIFIED IN
THE RELEVANT PROSPECTUS SUPPLEMENT OR PRICING SUPPLEMENT MAY OVERALLOT IN
CONNECTION WITH THE OFFERING, AND MAY BID FOR, AND PURCHASE, THE SECURITIES OR
ANY SECURITIES THE PRICES OF WHICH MAY BE USED TO DETERMINE PAYMENTS ON THE
SECURITIES IN THE OPEN MARKET. FOR A DESCRIPTION OF THESE ACTIVITIES, SEE
"PLAN OF DISTRIBUTION" IN THIS PROSPECTUS AND "PLAN OF DISTRIBUTION" OR
"UNDERWRITING" IN THE RELEVANT PROSPECTUS SUPPLEMENT AND PRICING SUPPLEMENT.
THE COMPANY
Morgan Stanley, Dean Witter, Discover & Co. (the "Company") is
a preeminent global financial services firm that maintains leading market
positions in each of its three primary businesses--securities, asset
management and credit services. The Company is a combination of Dean Witter,
Discover & Co. ("Dean Witter Discover") and Morgan Stanley Group Inc. ("Morgan
Stanley") and was formed pursuant to a merger of equals that was effected on
May 31, 1997 in which Morgan Stanley was merged with and into Dean Witter
Discover (the "Merger"). The Company combines three well recognized brands in
the financial services industry: Morgan Stanley, Dean Witter and
Discover([Registered]) Card. The Company combines global strength in
investment banking (including in the origination of quality underwritten
public offerings and in mergers and acquisitions advice) and institutional
sales and trading, with strength in providing investment and global asset
management products and services and, primarily through its Discover Card
brand, quality consumer credit products.
At November 30, 1997, the Company had the third largest account
executive sales organization in the United States, with 9,946 professional
account executives and 399 branches, and one of the largest global asset
management operations of any full-service securities firm, with total assets
under management and administration of $338 billion. In addition, based on
its approximately 40 million general purpose credit card accounts as of
November 30, 1997, the Company was the nation's largest credit card issuer as
measured by number of accounts and cardmembers.
The Company conducts its business from its headquarters in New
York City, its regional offices and branches throughout the United States, and
its principal offices in London, Tokyo, Hong Kong and throughout the world.
Dean Witter Discover was incorporated under the laws of the State of Delaware
in 1981, and its predecessor companies date back to 1924. Morgan Stanley was
incorporated under the laws of the State of Delaware in 1975, and its
predecessor companies date back to 1935. At November 30, 1997, the Company
had 47,277 employees.
The Company, through its subsidiaries, provides a wide range of
financial and securities services on a global basis and provides credit and
transaction services nationally. Its securities businesses ("Securities
Services") include securities underwriting, distribution and trading; merger,
acquisition, restructuring, real estate, project finance, and other corporate
finance advisory activities; full-service brokerage; research services; the
trading of foreign exchange and commodities as well as derivatives on a broad
range of asset categories, rates and indices; and securities lending. The
Company's asset management businesses ("Asset Management") include providing
global asset management advice and services to individual and institutional
investors through well-recognized brand names, including Dean Witter
InterCapital, Van Kampen American Capital, Morgan Stanley Asset Management and
Miller Anderson & Sherrerd; global custody and securities clearance; and
principal investment activities. The Company's credit and transaction
services businesses include the operation of the NOVUS([Registered]) Network,
a proprietary network of merchant and cash access locations, and the issuance
of the Discover Card and other proprietary general purpose credit cards. The
Company's services are provided to a large and diversified group of clients
and customers including corporations, governments, financial institutions and
individuals.
The Company's principal executive offices are at 1585 Broadway,
New York, New York 10036, and its telephone number is (212) 761-4000. Unless
the context otherwise requires, the term "Company" means Morgan Stanley, Dean
Witter, Discover & Co. and its consolidated subsidiaries.
USE OF PROCEEDS
The net proceeds from the sale of the Securities offered hereby
will be used for general corporate purposes of the Company, which may include
additions to working capital, the redemption of outstanding preferred stock,
the repurchase of outstanding common stock and the repayment of indebtedness
or for such other purposes set forth in the applicable Prospectus Supplement.
The Company anticipates that it will raise additional funds from time to time
through equity or debt financing, including borrowings under revolving credit
agreements, to finance its businesses worldwide.
CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES
AND EARNINGS TO FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
The following table sets forth the consolidated ratios of
earnings to fixed charges and earnings to fixed charges and preferred stock
dividends for the Company for the periods indicated. The fiscal year
information for 1996, 1995, 1994 and 1993 combines the historical financial
information of Dean Witter Discover for the years ended December 31, 1996,
1995, 1994 and 1993 with the historical financial information of Morgan
Stanley for the fiscal years ended November 30, 1996, 1995, 1994 and 1993.
Subsequent to the Merger, the Company adopted a fiscal year end of November
30. The fiscal year information for 1997 reflects the change in fiscal year
end.
<TABLE>
<CAPTION>
Fiscal Year
--------------------------------------------
1997 1996 1995 1994 1993
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges..................... 1.4 1.3 1.3 1.3 1.4
Ratio of earnings to fixed charges and preferred
stock dividends..................................... 1.4 1.3 1.3 1.3 1.4
</TABLE>
For the purpose of calculating the ratio of earnings to fixed
charges and the ratio of earnings to fixed charges and preferred stock
dividends, earnings consist of income before income taxes and fixed charges
(exclusive of preferred stock dividends). For purposes of calculating both
ratios, fixed charges include interest expense, capitalized interest and that
portion of rent expense estimated to be representative of the interest factor.
Additionally, for purposes of calculating the ratio of earnings to fixed
charges and preferred stock dividends, preferred stock dividends (on a pre-tax
basis) are included in the denominator of the ratio.
DESCRIPTION OF DEBT SECURITIES
The Debt Securities will constitute either senior or
subordinated debt of the Company and will be issued, in the case of Debt
Securities that will be senior debt, under a Senior Indenture dated as of
April 15, 1989, as supplemented by a First Supplemental Senior Indenture dated
as of May 15, 1991 and a Second Supplemental Senior Indenture dated as of
April 15, 1996, each between Morgan Stanley (as predecessor to the Company)
and The Chase Manhattan Bank (formerly known as Chemical Bank), as Trustee,
and by a Third Supplemental Senior Indenture dated as of June 1, 1997 and a
Fourth Supplemental Senior Indenture dated as of March 1, 1998, each between
the Company and The Chase Manhattan Bank, as Trustee (as so supplemented and
as further supplemented from time to time, the "Senior Debt Indenture"), and,
in the case of Debt Securities that will be subordinated debt, under a
Subordinated Indenture dated as of April 15, 1989, as supplemented by a First
Supplemental Subordinated Indenture dated as of May 15, 1991 and a Second
Supplemental Subordinated Indenture dated as of April 15, 1996 each between
Morgan Stanley (as predecessor to the Company) and The First National Bank of
Chicago, as Trustee, and by a Third Supplemental Subordinated Indenture dated
as of June 1, 1997 and a Fourth Supplemental Subordinated Indenture dated as
of March 1, 1998, each between the Company and The First National Bank of
Chicago, as Trustee (as so supplemented and as further supplemented from time
to time, the "Subordinated Debt Indenture"). The Senior Debt Indenture and
Subordinated Debt Indenture are sometimes hereinafter referred to individually
as an "Indenture" and collectively as the "Indentures." The Chase Manhattan
Bank and The First National Bank of Chicago are hereinafter referred to
individually as a "Trustee" and collectively as the "Trustees."
The following summaries of certain provisions of the Indentures
and the Debt Securities do not purport to be complete and such summaries are
subject to the detailed provisions of the applicable Indenture to which
reference is hereby made for a full description of such provisions, including
the definition of certain terms used herein, and for other information
regarding the Debt Securities. Numerical references in parentheses below are
to sections in the applicable Indenture. Wherever particular sections or
defined terms of the applicable Indenture are referred to, such sections or
defined terms are incorporated herein by reference as part of the statement
made, and the statement is qualified in its entirety by such reference. The
Indentures are substantially identical, except for the provisions relating to
subordination and the Company's negative pledge. See "Subordinated Debt" and
"Certain Covenants." The Debt Securities offered by this Prospectus and the
accompanying Prospectus Supplement are referred to herein as the "Offered Debt
Securities." As used under this caption and the captions "Description of
Warrants," "Description of Capital Stock," "Description of Purchase Contracts"
and "Description of Units," the term "Company" means Morgan Stanley, Dean
Witter, Discover & Co.
General
Neither of the Indentures limits the amount of additional
indebtedness that the Company or any of its subsidiaries may incur. The Debt
Securities will be unsecured senior or subordinated obligations of the
Company. Most of the assets of the Company are owned by its subsidiaries.
Therefore, the Company's rights and the rights of its creditors, including
holders of Debt Securities, to participate in the assets of any subsidiary
upon such subsidiary's liquidation or recapitalization will be subject to the
prior claims of such subsidiary's creditors, except to the extent that the
Company may itself be a creditor with recognized claims against the
subsidiary. In addition, dividends, loans and advances from certain
subsidiaries to the Company are restricted by legal requirements, including
(in the case of MS & Co. and DWR) net capital requirements under the Exchange
Act and under rules of certain exchanges and other regulatory bodies and (in
the case of Greenwood Trust Company, a Delaware chartered bank and an indirect
wholly owned subsidiary of the Company, and other bank subsidiaries) by
banking regulations.
The Indentures provide that Debt Securities may be issued from
time to time in one or more series and may be denominated and payable in
foreign currencies, including the euro, or units based on or relating to
foreign currencies, including European Currency Units ("ECUs"). Special United
States federal income tax considerations applicable to any Debt Securities so
denominated are described in the relevant Prospectus Supplement.
Reference is made to the Prospectus Supplement for the
following terms of and information relating to the Offered Debt Securities (to
the extent such terms are applicable to such Debt Securities): (i)
classification as senior or subordinated Debt Securities, the specific
designation, aggregate principal amount, purchase price and denomination; (ii)
currency or units based on or relating to currencies in which such Debt
Securities are denominated and/or in which principal (and premium, if any)
and/or interest will or may be payable; (iii) any date of maturity; (iv)
interest rate or rates (or the method by which such rate or rates will be
determined), if any; (v) the dates on which any such interest will be payable;
(vi) the place or places where the principal of, premium, if any, and
interest, if any, on the Offered Debt Securities will be payable; (vii) any
repayment, redemption, prepayment or sinking fund provisions; (viii) whether
the Offered Debt Securities will be issuable in registered form or bearer form
("Bearer Securities") or both and, if Bearer Securities are issuable, any
restrictions applicable to the exchange of one form for another and to the
offer, sale and delivery of Bearer Securities; (ix) the terms, if any, on
which such Debt Securities may be converted into or exchanged for stock or
other securities of the Company or other entities, any specific terms relating
to the adjustment thereof and the period during which such Debt Securities may
be so converted or exchanged; (x) any applicable United States federal income
tax consequences, including whether and under what circumstances the Company
will pay additional amounts on Offered Debt Securities held by a person who is
not a U.S. person (as defined in the Prospectus Supplement) in respect of any
tax, assessment or governmental charge withheld or deducted and, if so,
whether the Company will have the option to redeem such Debt Securities rather
than pay such additional amounts; and (xi) any other specific terms of the
Offered Debt Securities, including any additional events of default or
covenants provided for with respect to such Debt Securities, and any terms
which may be required by or advisable under applicable laws or regulations.
Debt Securities may be presented for exchange and registered
Debt Securities may be presented for transfer in the manner, at the places and
subject to the restrictions set forth in the Debt Securities and the
Prospectus Supplement. Such services will be provided without charge, other
than any tax or other governmental charge payable in connection therewith, but
subject to the limitations provided in the applicable Indenture. Debt
Securities in bearer form and the coupons, if any, appertaining thereto will
be transferable by delivery.
Debt Securities will bear interest at a fixed rate (a "Fixed
Rate Security") or a floating rate (a "Floating Rate Security"). Debt
Securities bearing no interest or interest at a rate that at the time of
issuance is below the prevailing market rate may be sold at a discount below
their stated principal amount. Special United States federal income tax
considerations applicable to any such discounted Debt Securities or to certain
Debt Securities issued at par which are treated as having been issued at a
discount for United States federal income tax purposes will be described in the
relevant Prospectus Supplement.
Debt Securities may be issued, from time to time, with the
principal amount payable on any principal payment date, or the amount of
interest payable on any interest payment date, to be determined by reference
to one or more currency exchange rates, securities or baskets of securities,
commodity prices or indices. Holders of such Debt Securities may receive a
payment of principal on any principal payment date, or a payment of interest
on any interest payment date, that is greater than or less than the amount of
principal or interest otherwise payable on such dates, depending upon the
value on such dates of the applicable currency, security or basket of
securities, commodity or index. Information as to the methods for determining
the amount of principal or interest payable on any date, the currencies,
securities or baskets of securities, commodities or indices to which the
amount payable on such date is linked and certain additional tax
considerations will be set forth in the applicable Prospectus Supplement.
Senior Debt
The Debt Securities and, in the case of Bearer Securities, any
coupons appertaining thereto (the "Coupons"), that will constitute part of the
senior debt of the Company will be issued under the Senior Debt Indenture and
will rank pari passu with all other unsecured and unsubordinated debt of the
Company.
Subordinated Debt
The Debt Securities and Coupons that will constitute part of
the subordinated debt of the Company will be issued under the Subordinated
Debt Indenture and will be subordinate and junior in right of payment, to the
extent and in the manner set forth in the Subordinated Debt Indenture, to all
"Senior Indebtedness" of the Company. The Subordinated Debt Indenture defines
"Senior Indebtedness" as obligations (other than nonrecourse obligations, the
subordinated Debt Securities or any other obligations specifically designated
as being subordinate in right of payment to Senior Indebtedness) of, or
guaranteed or assumed by, the Company for borrowed money or evidenced by
bonds, debentures, notes or other similar instruments, and amendments,
renewals, extensions, modifications and refundings of any such indebtedness or
obligations. (Subordinated Debt Indenture, Section 1.1)
In the event (a) of any insolvency or bankruptcy proceedings,
or any receivership, liquidation, reorganization or other similar proceedings
in respect of the Company or a substantial part of its property, or (b) that
(i) a default shall have occurred with respect to the payment of principal of
(and premium, if any) or any interest on or other monetary amounts due and
payable on any Senior Indebtedness or (ii) there shall have occurred an event
of default (other than a default in the payment of principal, premium, if any,
or interest, or other monetary amounts due and payable) with respect to any
Senior Indebtedness, as defined therein or in the instrument under which the
same is outstanding, permitting the holder or holders thereof to accelerate
the maturity thereof (with notice or lapse of time, or both), and such event
of default shall have continued beyond the period of grace, if any, in respect
thereof, and such default or event of default shall not have been cured or
waived or shall not have ceased to exist, or (c) that the principal of and
accrued interest on the subordinated Debt Securities shall have been declared
due and payable upon an Event of Default pursuant to Section 5.1 of the
Subordinated Debt Indenture and such declaration shall not have been rescinded
and annulled as provided therein, then the holders of all Senior Indebtedness
shall first be entitled to receive payment of the full amount unpaid thereon,
or provision shall be made for such payment in money or money's worth, before
the holders of any of the subordinated Debt Securities or Coupons are entitled
to receive a payment on account of the principal of (and premium, if any) or
any interest on the indebtedness evidenced by such subordinated Debt Securities
or such Coupons. (Subordinated Debt Indenture, Section 13.1) If this
Prospectus is being delivered in connection with a series of subordinated Debt
Securities, the accompanying Prospectus Supplement or the information
incorporated herein by reference will set forth the approximate amount of
Senior Indebtedness outstanding as of the end of the most recent fiscal
quarter.
Certain Covenants
Negative Pledge. The Senior Debt Indenture provides that the
Company and any successor corporation will not, and will not permit any
Subsidiary (as defined below) to, create, assume, incur or guarantee any
indebtedness for borrowed money secured by a pledge, lien or other encumbrance
(except for certain liens specifically permitted by such Indenture) on (i) the
Voting Securities (as defined below) of MS & Co., MSIL, DWR, Greenwood Trust
Company, or any Subsidiary succeeding to any substantial part of the business
now conducted by any of such corporations (collectively, the "Principal
Subsidiaries") or (ii) Voting Securities of a Subsidiary that owns, directly
or indirectly, Voting Securities of any of the Principal Subsidiaries (other
than directors' qualifying shares) without making effective provisions whereby
the Debt Securities issued under such Indenture will be secured equally and
ratably with such secured indebtedness. "Subsidiary" means any corporation,
partnership or other entity of which at the time of determination the Company
owns or controls directly or indirectly more than 50% of the shares of the
voting stock or equivalent interest. "Voting Securities" means stock of any
class or classes having general voting power under ordinary circumstances to
elect a majority of the board of directors, managers or trustees of the
Subsidiary in question, provided that, for the purposes hereof, stock which
carries only the right to vote conditionally on the happening of an event shall
not be considered voting stock whether or not such event shall have happened.
(Senior Debt Indenture, Section 3.6)
Merger, Consolidation, Sale, Lease or Conveyance. Each
Indenture provides that the Company will not merge or consolidate with any
other person and will not sell, lease or convey all or substantially all its
assets to any person, unless the Company shall be the continuing corporation,
or the successor corporation or person that acquires all or substantially all
the assets of the Company shall be a corporation organized under the laws of
the United States or a state thereof or the District of Columbia and shall
expressly assume all obligations of the Company under the Indenture and the
Debt Securities issued thereunder, and immediately after such merger,
consolidation, sale, lease or conveyance, the Company, such person or such
successor corporation shall not be in default in the performance of the
covenants and conditions of such Indenture to be performed or observed by the
Company. (Indentures, Section 9.1) This covenant would not apply to a
recapitalization transaction, a change of control of the Company or a highly
leveraged transaction unless such transactions or change of control were
structured to include a merger or consolidation or sale, lease or conveyance of
all or substantially all of the assets of the Company.
Except as may be described in a Prospectus Supplement
applicable to a particular series of Debt Securities, there are no covenants
or other provisions in the Indentures providing for a put or increased
interest or otherwise that would afford holders of Debt Securities additional
protection in the event of a recapitalization transaction, a change of control
of the Company or a highly leveraged transaction.
Events of Default
An Event of Default is defined under each Indenture with
respect to Debt Securities of any series issued under such Indenture as being:
(a) default in payment of any principal of the Debt Securities of such series,
either at maturity (or upon any redemption), by declaration or otherwise; (b)
default for 30 days in payment of any interest on any Debt Securities of such
series; (c) default for 60 days after written notice in the observance or
performance of any other covenant or agreement in the Debt Securities of such
series or such Indenture other than a covenant included in such Indenture
solely for the benefit of a series of Debt Securities other than such series;
(d) certain events of bankruptcy, insolvency or reorganization; (e) failure by
the Company to make any payment at maturity, including any applicable grace
period, in respect of indebtedness, which term as used in each of the
Indentures means obligations (other than nonrecourse obligations or the Debt
Securities of such series issued under such Indenture) of, or guaranteed or
assumed by, the Company for borrowed money or evidenced by bonds, debentures,
notes or other similar instruments ("Indebtedness") in an amount in excess of
$10,000,000 and continuance of such failure for a period of 30 days after
written notice thereof to the Company by the Trustee, or to the Company and
the Trustee by the holders of not less than 25% in principal amount of such
outstanding Debt Securities (treated as one class) issued under such
Indenture; or (f) default with respect to any Indebtedness, which default
results in the acceleration of Indebtedness in an amount in excess of
$10,000,000 without such Indebtedness having been discharged or such
acceleration having been cured, waived, rescinded or annulled for a period of
30 days after written notice thereof to the Company by the Trustee, or to the
Company and the Trustee by the holders of not less than 25% in principal
amount of such outstanding Debt Securities (treated as one class) issued under
such Indenture; provided, however, that if any such failure, default or
acceleration referred to in clause (e) or clause (f) above shall cease or be
cured, waived, rescinded or annulled, then the Event of Default by reason
thereof shall be deemed likewise to have been thereupon cured. (Indentures,
Section 5.1)
Each Indenture provides that (a) if an Event of Default due to
the default in payment of principal of, premium, if any, or interest on, any
series of Debt Securities issued under such Indenture or due to the default in
the performance or breach of any other covenant or warranty of the Company
applicable to the Debt Securities of such series but not applicable to all
outstanding Debt Securities issued under such Indenture shall have occurred
and be continuing, either the Trustee or the holders of not less than 25% in
principal amount of such Debt Securities of each such affected series (treated
as one class) issued under such Indenture and then outstanding may then
declare the principal of all Debt Securities of each such affected series and
interest accrued thereon to be due and payable immediately; and (b) if an
Event of Default due to a default in the performance of any other of the
covenants or agreements in such Indenture applicable to all outstanding Debt
Securities issued under such Indenture and then outstanding or due to certain
events of bankruptcy, insolvency or reorganization of the Company shall have
occurred and be continuing, either the Trustee or the holders of not less than
25% in principal amount of all Debt Securities issued under such Indenture and
then outstanding (treated as one class) may declare the principal of all such
Debt Securities and interest accrued thereon to be due and payable
immediately, but upon certain conditions such declarations may be annulled and
past defaults may be waived (except a continuing default in payment of
principal of (or premium, if any) or interest on such Debt Securities) by the
holders of a majority in principal amount of the Debt Securities of all such
affected series then outstanding. (Indentures, Sections 5.1 and 5.10)
Each Indenture contains a provision entitling the Trustee,
subject to the duty of the Trustee during a default to act with the required
standard of care, to be indemnified by the holders of Debt Securities (treated
as one class) issued under such Indenture before proceeding to exercise any
right or power under such Indenture at the request of such holders.
(Indentures, Section 6.2) Subject to such provisions in each Indenture for the
indemnification of the Trustee and certain other limitations, the holders of a
majority in principal amount of the outstanding Debt Securities (treated as
one class) issued under such Indenture may direct the time, method and place
of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee. (Indentures, Section
5.9)
Each Indenture provides that no holder of Debt Securities
issued under such Indenture may institute any action against the Company under
such Indenture (except actions for payment of overdue principal or interest)
unless such holder previously shall have given to the Trustee written notice
of default and continuance thereof and unless the holders of not less than 25%
in principal amount of the Debt Securities of each affected series (treated as
one class) issued under such Indenture and then outstanding shall have
requested the Trustee to institute such action and shall have offered the
Trustee reasonable indemnity, the Trustee shall not have instituted such
action within 60 days of such request and the Trustee shall not have received
direction inconsistent with such written request by the holders of a majority
in principal amount of the Debt Securities of each affected series (treated as
one class) issued under such Indenture and then outstanding. (Indentures,
Sections 5.6 and 5.9)
Each Indenture contains a covenant that the Company will file
annually with the Trustee a certificate of no default or a certificate
specifying any default that exists. (Indentures, Section 3.5)
Discharge, Defeasance and Covenant Defeasance
The Company can discharge or defease its obligations under an
Indenture as set forth below. (Indentures, Section 10.1)
Under terms satisfactory to the Trustee, the Company may
discharge certain obligations to holders of any series of Debt Securities
issued under such Indenture which have not already been delivered to the
Trustee for cancellation and which have either become due and payable or are
by their terms due and payable within one year (or scheduled for redemption
within one year) by irrevocably depositing with the Trustee cash or, in the
case of Debt Securities payable only in U.S. dollars, U.S. Government
Obligations (as defined in such Indenture), as trust funds in an amount
certified to be sufficient to pay at maturity (or upon redemption) the
principal of and interest on such Debt Securities.
The Company may also discharge any and all of the obligations
to holders of any series of Debt Securities issued under an Indenture at any
time ("defeasance"), but may not thereby avoid any duty to register the
transfer or exchange of such series of Debt Securities, to replace any
mutilated, defaced, destroyed, lost, or stolen Debt Securities of such series
or to maintain an office or agency in respect of such series of Debt
Securities. Under terms satisfactory to the relevant Trustee, the Company may
instead be released with respect to any outstanding series of Debt Securities
issued under the relevant Indenture from the obligations imposed by Sections
3.6 (in the case of the Senior Debt Indenture) and 9.1 (which Sections contain
the covenants described above limiting liens and consolidations, mergers,
asset sales and leases), and elect not to comply with such Sections without
creating an Event of Default ("covenant defeasance"). Defeasance or covenant
defeasance may be effected only if, among other things: (i) the Company
irrevocably deposits with the relevant Trustee cash or, in the case of Debt
Securities payable only in U.S. dollars, U.S. Government Obligations, as trust
funds in an amount certified to be sufficient to pay at maturity (or upon
redemption) the principal of and interest on all outstanding Debt Securities
of such series issued under such Indenture; (ii) the Company delivers to the
relevant Trustee an opinion of counsel to the effect that the holders of such
series of Debt Securities will not recognize income, gain or loss for United
States federal income tax purposes as a result of such defeasance or covenant
defeasance and that defeasance or covenant defeasance will not otherwise alter
such holders' United States federal income tax treatment of principal and
interest payments on such series of Debt Securities (in the case of a
defeasance, such opinion must be based on a ruling of the Internal Revenue
Service or a change in United States federal income tax law occurring after
the date of such Indenture, since such a result would not occur under current
tax law); and (iii) in the case of the Subordinated Debt Indenture (a) no
event or condition shall exist that, pursuant to certain provisions described
under "Subordinated Debt" above, would prevent the Company from making
payments of principal of (and premium, if any) and interest on the
subordinated Debt Securities at the date of the irrevocable deposit referred
to above or at any time during the period ending on the 91st day after such
deposit date and (b) the Company delivers to the Trustee for the Subordinated
Debt Indenture an opinion of counsel to the effect that (1) the trust funds
will not be subject to any rights of holders of Senior Indebtedness and (2)
after the 91st day following the deposit, the trust funds will not be subject
to the effect of any applicable bankruptcy, insolvency, reorganization or
similar laws affecting creditors' rights generally, except that if a court
were to rule under any such law in any case or proceeding that the trust funds
remained property of the Company, then the relevant Trustee and the holders of
the subordinated Debt Securities would be entitled to certain rights as
secured creditors in such trust funds.
Modification of the Indentures
Each Indenture provides that the Company and the Trustee may
enter into supplemental indentures without the consent of the holders of Debt
Securities to: (a) secure any Debt Securities, (b) evidence the assumption by
a successor corporation of the obligations of the Company, (c) add covenants
for the protection of the holders of Debt Securities, (d) cure any ambiguity
or correct any inconsistency in such Indenture, (e) establish the forms or
terms of Debt Securities of any series and (f) evidence the acceptance of
appointment by a successor trustee. (Indentures, Section 8.1)
Each Indenture also contains provisions permitting the Company
and the Trustee, with the consent of the holders of not less than a majority
in principal amount of Debt Securities of all series issued under such
Indenture then outstanding and affected (voting as one class), to add any
provisions to, or change in any manner or eliminate any of the provisions of,
such Indenture or modify in any manner the rights of the holders of the Debt
Securities of each series so affected; provided that the Company and the
Trustee may not, without the consent of the holder of each outstanding Debt
Security affected thereby, (a) extend the stated maturity of the principal of
any Debt Security, or reduce the principal amount thereof or reduce the rate
or extend the time of payment of interest thereon, or reduce any amount
payable on redemption thereof or change the currency in which the principal
thereof (including any amount in respect of original issue discount), premium,
if any, or interest thereon is payable or reduce the amount of any original
issue discount security payable upon acceleration or provable in bankruptcy or
alter certain provisions of such Indenture relating to the Debt Securities
issued thereunder not denominated in U.S. dollars or impair the right to
institute suit for the enforcement of any payment on any Debt Security when
due or (b) reduce the aforesaid percentage in principal amount of Debt
Securities of any series issued under such Indenture, the consent of the
holders of which is required for any such modification. (Indentures, Section
8.2)
The Subordinated Debt Indenture may not be amended to alter the
subordination of any outstanding subordinated Debt Securities without the
written consent of each holder of Senior Indebtedness then outstanding that
would be adversely affected thereby. (Subordinated Debt Indenture, Section 8.6)
Concerning the Trustees
The Chase Manhattan Bank and The First National Bank of Chicago
are two of a number of banks with which the Company and its subsidiaries
maintain ordinary banking relationships and with which the Company and its
subsidiaries maintain credit facilities.
DESCRIPTION OF WARRANTS
The Company may issue, together with Debt Securities or
separately, Debt Warrants for the purchase of Debt Securities on terms to be
determined at the time of sale. The Company may also issue Universal Warrants
to purchase or sell (i) securities of an entity unaffiliated with the Company,
a basket of such securities, an index or indices of such securities or any
combination of the above, (ii) currencies or composite currencies or (iii)
commodities, on terms to be determined at the time of sale. The Company may
satisfy its obligations, if any, with respect to any Universal Warrants by
delivering the underlying securities, currencies or commodities or, in the
case of underlying securities or commodities, the cash value thereof, as set
forth in the applicable Prospectus Supplement. Warrants may be offered
separately or together with one or more additional Warrants, Purchase
Contracts or Debt Securities or any combination thereof in the form of Units,
as set forth in the applicable Prospectus Supplement. If Warrants are issued
as part of a Unit, the accompanying Prospectus Supplement will specify whether
such Warrants may be separated from the other Securities in such Unit prior to
the Warrants' expiration date. The Warrants offered by this Prospectus and the
accompanying Prospectus Supplement are referred to herein as the "Offered
Warrants."
The Offered Warrants are to be issued under one or more Warrant
Agreements (each, a "Warrant Agreement") to be entered into between the
Company and a bank or trust company, as Warrant Agent (the "Warrant Agent"),
and may be issued in one or more series, all as shall be set forth in the
Prospectus Supplement relating thereto. Reference is made to the Prospectus
Supplement for any further description of the terms of any Warrant Agreement
governing the Offered Warrants. The forms of Warrant Agreement for the
Warrants are filed as exhibits to the Registration Statement of which this
Prospectus is a part. The following summaries of certain provisions of the
applicable Warrant Agreement and the Warrants do not purport to be complete
and such summaries are subject to the detailed provisions of such Warrant
Agreement to which reference is hereby made for a full description of such
provisions, including the definition of certain terms used herein, and for
other information regarding the Warrants. Wherever particular provisions of
the Warrant Agreement are referred to, such provisions are incorporated by
reference as a part of the statements made, and the statements are qualified
in their entirety by such reference.
General
Reference is made to the Prospectus Supplement for the
following terms of and information relating to the Offered Warrants: (i) the
specific designation and aggregate number of and the price at which the
Offered Warrants will be issued; (ii) the currency or composite currency for
which the Offered Warrants may be purchased; (iii) the date on which the right
to exercise the Offered Warrants shall commence and the date (the "Warrant
Expiration Date") on which such right shall expire or, if the Offered Warrants
are not continuously exercisable throughout such period, the specific date or
dates on which they will be exercisable (each, a "Warrant Exercise Date,"
which term shall also mean, with respect to Offered Warrants continuously
exercisable for a period of time, every date during such period); (iv) whether
the Warrant certificates representing the Offered Warrants (the "Warrant
Certificates") will be in registered form ("Registered Warrants") or bearer
form ("Bearer Warrants") or both; (v) whether any Offered Warrants will be
issued in global or definitive form or both; (vi) any applicable United States
federal income tax consequences; (vii) the identity of the Warrant Agent in
respect of the Offered Warrants and of any other depositaries, execution or
paying agents, transfer agents, registrars or determination or other agents;
(viii) the proposed listing, if any, of the Offered Warrants or the securities
purchasable upon exercise thereof on any securities exchange; (ix) whether the
Offered Warrants are to be sold separately or with other Offered Securities as
part of Units; and (x) any other terms of the Offered Warrants.
Reference is made to the Prospectus Supplement for the
following terms of and information relating to any Offered Debt Warrants: (i)
the designation, aggregate principal amount, currency or composite currency
and terms of the Debt Securities that may be purchased upon exercise of the
Offered Debt Warrants, (ii) if applicable, the designation and terms of the
Debt Securities with which the Offered Debt Warrants are issued and the number
of the Offered Debt Warrants issued with each of such Debt Securities, (iii)
if applicable, the date on and after which the Offered Securities and the
related Debt Securities will be separately transferable and (iv) the principal
amount of Debt Securities purchasable upon exercise of each Offered Debt
Warrant, the price at which and the currency or composite currency in which
such principal amount of Debt Securities may be purchased upon such exercise
and the method of such exercise.
Reference is made to the Prospectus Supplement for the
following terms of and information relating to any Offered Universal Warrants:
(i) whether such Offered Universal Warrants are put Warrants or call Warrants;
(ii)(a) the specific security, basket of securities, index or indices of
securities or combination of the above, (b) currencies or composite currencies
or (c) commodities (and, in each case, the amount thereof or the method for
determining the same) purchasable or saleable upon exercise of each Offered
Universal Warrant; (iii) the price at which and the currency or composite
currency with which such underlying securities, currencies or commodities may
be purchased or sold upon such exercise (or the method of determining the
same); (iv) whether such exercise price may be paid in cash, by the exchange
of any other Security offered with such Offered Universal Warrants or both and
the method of such exercise; and (v) whether the exercise of such Offered
Universal Warrants is to be settled in cash or by delivery of the underlying
securities or commodities or both.
Registered Warrants of each series will be evidenced by Warrant
Certificates in registered form, which may be global Registered Warrants or
definitive Registered Warrants, as specified in the applicable Prospectus
Supplement. Bearer Warrants of each series will be evidenced by one or more
global Warrant Certificates in bearer form and, if specified in the applicable
Prospectus Supplement, in definitive form. Bearer Debt Warrants will not be
issued in definitive form. See "Global Securities" herein.
At the option of the holder upon request confirmed in writing,
and subject to the terms of the applicable Warrant Agreement, Registered
Warrants in definitive form may be presented for exchange and for registration
of transfer (with the form of transfer endorsed thereon duly executed) at the
corporate trust office of the Warrant Agent for such series of Warrants (or
any other office indicated in the Prospectus Supplement relating to such
series of Warrants) without service charge and upon payment of any taxes and
other governmental charges as described in such Warrant Agreement. Such
transfer or exchange will be effected only if the Warrant Agent for such
series of Warrants is satisfied with the documents of title and identity of
the person making the request.
Modifications
Each Warrant Agreement and the terms of the Warrants and the
Warrant Certificates may be amended by the Company and the Warrant Agent,
without the consent of the holders, for the purpose of curing any ambiguity,
or of curing, correcting or supplementing any defective or inconsistent
provision therein or in any other manner which the Company may deem necessary
or desirable and which will not adversely affect the interests of the affected
holders in any material respect.
The Company and any Warrant Agent may also modify or amend the
Warrant Agreement between them and the terms of the Warrants issued
thereunder, with the consent of the owners of not less than a majority in
number of the then outstanding unexercised Warrants affected, provided that no
such modification or amendment that changes the exercise price of the
Warrants, reduces the amount receivable upon exercise, cancellation or
expiration, shortens the period of time during which the Warrants may be
exercised or otherwise materially and adversely affects the rights of the
owners of the Warrants or reduces the percentage of outstanding Warrants, the
consent of whose owners is required for modification or amendment of the
applicable Warrant Agreement or the terms of the Warrants issued thereunder,
may be made without the consent of the owners affected thereby.
Merger, Consolidation, Sale or Other Disposition
If at any time there shall be a merger or consolidation of the
Company or a transfer of substantially all of its assets as permitted under
the applicable Indentures, the successor corporation thereunder shall succeed
to and assume all obligations of the Company under each Warrant Agreement and
the Warrant Certificates. The Company shall thereupon be relieved of any
further obligation under such Warrant Agreements and such Warrants. The
Company shall notify the Warrantholders of the occurrence of any such event.
See "Description of Debt Securities -- Certain Covenants."
Enforceability of Rights of Warrantholders; Governing Law
The Warrant Agents will act solely as agents of the Company in
connection with the Warrant Certificates and will not assume any obligation or
relationship of agency or trust for or with any holders of Warrant
Certificates or beneficial owners of Warrants. Any holder of Warrant
Certificates and any beneficial owner of Warrants may, without the consent of
the Warrant Agent, any other holder or beneficial owner, the relevant Trustee,
the holder of any Debt Securities or other securities issuable upon exercise
of Warrants or, if applicable, the common depositary for the Euroclear System
currently operated by Morgan Guaranty Trust Company of New York, Brussels
Office, or its successor as operator of the Euroclear System ("Euroclear") and
Cedel Bank, societe anonyme or its successor ("Cedel Bank"), enforce by
appropriate legal action, on its own behalf, its right to exercise the
Warrants evidenced by such Warrant Certificates, in the manner provided
therein and in the applicable Warrant Agreement. No holder of any Warrant
Certificate or beneficial owner of any Warrants shall be entitled to any of
the rights of a holder of the Debt Securities or other securities purchasable
upon exercise of such Warrants, including, without limitation, the right to
receive the payment of dividends, principal of or premium, if any, or
interest, if any, on such Debt Securities or other securities or to enforce
any of the covenants or rights in the relevant Indenture or any other similar
agreement. The Warrants and each Warrant Agreement will be governed by, and
construed in accordance with, the laws of the State of New York.
Unsecured Obligations of the Company
The Warrants are unsecured contractual obligations of the
Company and will rank pari passu with the Company's other unsecured
contractual obligations and with the Company's unsecured and unsubordinated
debt. Most of the assets of the Company are owned by its subsidiaries.
Therefore, the Company's rights and the rights of its creditors, including
Warrantholders, to participate in the distribution of assets of any subsidiary
upon such subsidiary's liquidation or recapitalization will be subject to the
prior claims of such subsidiary's creditors, except to the extent that the
Company may itself be a creditor with recognized claims against the
subsidiary. In addition, dividends, loans and advances from certain
subsidiaries to the Company are restricted by legal requirements, including
(in the case of MS & Co. and DWR) net capital requirements under the Exchange
Act and under rules of certain exchanges and other regulatory bodies and (in
the case of Greenwood Trust Company and other bank subsidiaries) by banking
regulations.
DESCRIPTION OF PURCHASE CONTRACTS
The Company may issue Purchase Contracts for the purchase or
sale of (i) securities of an entity unaffiliated with the Company, a basket of
such securities, an index or indices of such securities or any combination of
the above as specified in the applicable Prospectus Supplement, (ii)
currencies or composite currencies or (iii) commodities. Each Purchase
Contract will entitle the holder thereof to purchase or sell, and obligate the
Company to sell or purchase, on specified dates, such securities, currencies
or commodities at a specified purchase price, all as set forth in the
applicable Prospectus Supplement. The applicable Prospectus Supplement will
also specify the methods by which the holders may purchase or sell such
securities, currencies or commodities and any acceleration, cancellation or
termination provisions or other provisions relating to the settlement of a
Purchase Contract.
Purchase Contracts may require holders to satisfy their
obligations thereunder when such Purchase Contracts are issued ("Pre-paid
Purchase Contracts"). The Company's obligation to settle such Pre-paid
Purchase Contracts on the relevant settlement date will constitute Senior
Indebtedness or subordinated indebtedness of the Company. Accordingly, such
Pre-paid Purchase Contracts will be issued under the Senior Debt Indenture or
the Subordinated Debt Indenture, as specified in the applicable Prospectus
Supplement.
DESCRIPTION OF UNITS
As specified in the applicable Prospectus Supplement, Units
will consist of one or more Purchase Contracts, Warrants and Debt Securities
or any combination thereof. Reference is made to the applicable Prospectus
Supplement for (i) all terms of Units and of the Purchase Contracts, Warrants
and Debt Securities, or any combination thereof, comprising such Units,
including whether and under what circumstances the Securities comprising such
Units may or may not be traded separately, (ii) a description of the terms of
any Unit Agreement governing the Units and (iii) a description of the
provisions for the payment, settlement, transfer or exchange of the Units.
LIMITATIONS ON ISSUANCE OF BEARER SECURITIES AND BEARER DEBT WARRANTS
In compliance with United States federal income tax laws and
regulations, Bearer Securities (including Bearer Securities in global form)
and Bearer Debt Warrants will not be offered, sold, resold or delivered,
directly or indirectly, in the United States or its possessions or to United
States persons (as defined below), except as otherwise permitted by United
States Treasury Regulations Section 1.163-5(c)(2)(i)(D). Any underwriters,
agents or dealers participating in the offerings of Bearer Securities or
Bearer Debt Warrants, directly or indirectly, must agree that (i) they will
not, in connection with the original issuance of any Bearer Securities or
during the restricted period (as defined in United States Treasury Regulations
Section 1.163-5(c)(2)(i)(D)(7)) (the "restricted period"), offer, sell, resell
or deliver, directly or indirectly, any Bearer Securities in the United States
or its possessions or to United States persons (other than as permitted by the
applicable Treasury Regulations described above) and (ii) they will not, at
any time, offer, sell, resell or deliver, directly or indirectly, any Bearer
Debt Warrants in the United States or its possessions or to United States
persons (other than as permitted by the applicable Treasury Regulations
described above). In addition, any such underwriters, agents or dealers must
have procedures reasonably designed to ensure that its employees or agents who
are directly engaged in selling Bearer Securities or Bearer Debt Warrants are
aware of the above restrictions on the offering, sale, resale or delivery of
Bearer Securities or Bearer Debt Warrants. Moreover, Bearer Securities (other
than temporary global Debt Securities and Bearer Securities that satisfy the
requirements of United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(3)(iii)) and any Coupons appertaining thereto will not be
delivered in definitive form, and no interest will be paid thereon, unless the
Company has received a signed certificate in writing (or an electronic
certificate described in United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(3)(ii)) stating that on such date such Bearer Security (i)
is owned by a person that is not a United States person, (ii) is owned by a
United States person that (a) is a foreign branch of a United States financial
institution (as defined in applicable United States Treasury Regulations) (a
"financial institution") purchasing for its own account or for resale, or (b)
is acquiring such Bearer Security through a foreign branch of a United States
financial institution and who holds the Bearer Security through such financial
institution through such date (and in either case (a) or (b) above, each such
United States financial institution agrees, on its own behalf or through its
agent, that the Company may be advised that it will comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code
of 1986, as amended (the "Code"), and the regulations thereunder) or (iii) is
owned by a United States or foreign financial institution for the purposes of
resale during the restricted period and, in addition, if the owner of such
Bearer Security is a United States or foreign financial institution described
in clause (iii) above (whether or not also described in clause (i) or clause
(ii) above), such financial institution certifies that it has not acquired the
Bearer Security for purposes of resale directly or indirectly to a United
States person or to a person within the United States or its possessions.
Bearer Debt Warrants will not be issued in definitive form. Payments on Bearer
Securities and Bearer Debt Warrants will be made only outside the United
States and its possessions except as permitted by the above regulations.
Bearer Securities (other than temporary global Securities) and
any Coupons appertaining thereto will bear the following legend: "Any United
States person who holds this obligation will be subject to limitations under
the United States income tax laws, including the limitations provided in
Sections 165(j) and 1287(a) of the Internal Revenue Code." The sections
referred to in such legend provide that, with certain exceptions, a United
States person will not be permitted to deduct any loss, and will not be
eligible for capital gain treatment with respect to any gain, realized on the
sale, exchange or redemption of such Bearer Security or Coupon.
As used in the preceding two paragraphs, the term Bearer
Securities includes Bearer Securities that are part of Units and the term
Bearer Debt Warrants includes Bearer Debt Warrants that are part of Units. As
used herein, "United States person" means, for United States federal income
tax purposes, a citizen or resident of the United States, a corporation,
partnership or other entity created or organized in or under the laws of the
United States or any political subdivision thereof, or an estate the income of
which is subject to United States federal income taxation regardless of its
source, or a trust if a court within the United States is able to exercise
primary supervision of the administration of the trust and one or more United
States persons have the authority to control all substantial decisions of the
trust. In addition, certain trusts treated as United States persons before
August 20, 1996 may elect to continue to be so treated to the extent provided
in the Treasury Regulations.
DESCRIPTION OF CAPITAL STOCK
As of the date of this Prospectus, the Company's authorized
capital stock consists of 1,750,000,000 shares of Common Stock, par value
$0.01 per share, and 30,000,000 shares of Preferred Stock, par value $0.01 per
share ("Preferred Stock"). The Board of Directors of the Company has the
power, without further action by the stockholders unless action is required by
applicable laws or regulations or by the terms of outstanding Preferred Stock,
to issue Preferred Stock in one or more series and to fix the voting rights,
designations, preferences and relative, participating, optional and other
special rights, and the qualifications, limitations and restrictions
applicable thereto.
The rights of holders of the Preferred Stock offered hereby
(the "Offered Preferred Stock") will be subject to, and may be adversely
affected by, the rights of holders of any Preferred Stock that may be issued
in the future. The Board of Directors may cause shares of Preferred Stock to
be issued to obtain additional financing, in connection with acquisitions, to
officers, directors or employees of the Company and its subsidiaries pursuant
to benefit plans or otherwise and for other proper corporate purposes. Shares
of Preferred Stock issued by the Company may have the effect, under certain
circumstances, alone or in combination with certain other provisions of the
Company's Amended and Restated Certificate of Incorporation ("Certificate of
Incorporation") described below, of rendering more difficult or discouraging
an acquisition of the Company deemed undesirable by the Board of Directors.
As of January 26, 1998, there were approximately 605,394,651
shares of Common Stock outstanding. On January 26, 1998, the Company also had
outstanding the following series of Preferred Stock: approximately 3,642,149
shares of ESOP Convertible Preferred Stock, with a liquidation value of
$35.875 per share (the "ESOP Preferred Stock"), issued in connection with the
Company's Employee Stock Ownership Plan (the "ESOP"), 1,000,000 shares of 7
3/8% Cumulative Preferred Stock, with a stated value of $200.00 per share (the
"7 3/8% Preferred Stock"), 1,000,000 shares of 7 3/4% Cumulative Preferred
Stock, with a stated value of $200.00 per share (the "7 3/4% Preferred Stock")
and 1,725,000 shares of Series A Fixed/Adjustable Rate Cumulative Preferred
Stock, with a stated value of $200.00 per share (the "Series A
Fixed/Adjustable Rate Preferred Stock"). The 7 3/8% Preferred Stock, the 7
3/4% Preferred Stock and the Series A Fixed/Adjustable Rate Preferred Stock
are collectively referred to herein as the "Existing Cumulative Preferred
Stock." In addition, the Company and its wholly owned subsidiary Morgan
Stanley Finance plc have outstanding Capital Units that may result in up to
611,238 shares of the Company's 7.82% Cumulative Preferred Stock, with a
stated value of $200.00 per share (the "7.82% Preferred Stock"), being issued
at any time, up to 1,150,000 shares of the Company's 7.80% Cumulative
Preferred Stock, with a stated value of $200.00 per share (the "7.80% Preferred
Stock"), being issued at any time, up to 720,900 shares of the Company's 9.00%
Cumulative Preferred Stock, with a stated value of $200.00 per share (the
"9.00% Preferred Stock"), being issued at any time, up to 996,776 shares of the
Company's 8.40% Cumulative Preferred Stock, with a stated value of $200.00 per
share (the "8.40% Preferred Stock"), being issued at any time, up to 847,500
shares of the Company's 8.20% Cumulative Preferred Stock, with a stated value
of $200.00 per share (the "8.20% Preferred Stock"), being issued at any time,
and up to 670,000 shares of the Company's 8.03% Cumulative Preferred Stock,
with a stated value of $200.00 per share (the "8.03% Preferred Stock"), being
issued at any time on or after February 28, 1998. The 7.82% Preferred Stock,
the 7.80% Preferred Stock, the 9.00% Preferred Stock, the 8.40% Preferred
Stock, the 8.20% Preferred Stock and the 8.03% Preferred Stock are
collectively referred to herein as the "Capital Units Cumulative Preferred
Stock." In addition, the Company has authorized the issuance of up to 450,000
shares of Series A Junior Participating Preferred Stock, par value $0.01 per
share (the "Series A Preferred Stock"), which may be issued as a result of the
exercise of certain rights issued to the holders of the Common Stock pursuant
to the Company's Rights Plan. See "The Rights Plan." The following summary
does not purport to be complete and is qualified by the Company's Certificate
of Incorporation, by a Certificate of Designation of Preferences and Rights of
the ESOP Preferred Stock, by a Certificate of Designation of Preferences and
Rights for each of the 7.82% Preferred Stock, the 7.80% Preferred Stock, the
9.00% Preferred Stock, the 8.40% Preferred Stock, the 8.20% Preferred Stock
and the 8.03% Preferred Stock, by a Certificate of Designation of Preferences
and Rights of each series of Existing Cumulative Preferred Stock and by a
Certificate of Designation of Preferences and Rights for the Series A
Preferred Stock.
Offered Preferred Stock
The Board of Directors of the Company has authorized the
issuance in series of additional shares of Preferred Stock and has authorized
a committee of the Board of Directors (the "Committee") to establish and
designate series and to fix the number of shares and the relative rights,
preferences and limitations of the respective series of the Offered Preferred
Stock. The shares of Offered Preferred Stock, when issued and sold, will be
fully paid and nonassessable.
The following description of the terms of the Offered Preferred
Stock sets forth certain general terms and provisions of the Offered Preferred
Stock to which a Prospectus Supplement relates. The number of shares and all of
the terms and conditions of the relative rights, preferences and limitations
of the respective series of Offered Preferred Stock as established by the
Board of Directors or the Committee will be set forth in the Prospectus
Supplement accompanying this Prospectus relating to the particular series of
Offered Preferred Stock being offered thereby. The terms of particular series
of Offered Preferred Stock may differ, among other things, in (i) the number
of shares that constitute such series, (ii) the dividend rate (or the method
of calculation thereof) on the shares of such series, (iii) the dividend
periods (or the method of calculation thereof), (iv) the stated value of the
shares of such series, (v) the voting rights of the shares of such series,
(vi) the preferences and rights of the shares of such series upon any
liquidation or winding-up of the Company, (vii) whether or not and on what
terms the shares of such series will be subject to redemption at the option of
the Company, (viii) whether depositary shares representing shares of such
series of Offered Preferred Stock will be offered and, if so, the fraction or
multiple of a share of such series of Offered Preferred Stock represented by
each depositary share and (ix) the other rights and privileges and any
qualifications, limitations or restrictions of such rights or privileges of
such series.
As described under "Depositary Shares" below, the Company may,
at its option, elect to offer depositary shares (the "Depositary Shares")
evidenced by depositary receipts, each representing a fraction or a multiple
(to be specified in the Prospectus Supplement relating to the particular
series of Offered Preferred Stock) of a share of the particular series of
Offered Preferred Stock issued and deposited with a depositary, in lieu of
offering individual shares of such series of Offered Preferred Stock.
The following statements are brief summaries of certain
provisions that will be contained in the Certificate of Designation
authorizing the issuance of a series of Offered Preferred Stock, do not
purport to be complete and are qualified in their entirety by reference to
such Certificate of Designation, the form of which has been filed as an exhibit
to the Registration Statement of which this Prospectus is a part, and by the
Company's Certificate of Incorporation. The resolutions to be set forth in the
Certificate of Designation will be adopted by the Board of Directors or the
Committee prior to the issuance of a series of Offered Preferred Stock, and
such Certificate of Designation will be filed with the Secretary of State of
the State of Delaware as soon thereafter as reasonably practicable. In the
event the Company elects to issue Depositary Shares, each representing a
fraction or a multiple of a share of a particular series of Offered Preferred
Stock, subject to the terms of the Deposit Agreement (as defined below), each
such Depositary Share will be entitled, in proportion to the applicable
fraction or multiple of a share of Offered Preferred Stock represented by such
Depositary Share, to all the rights and preferences of the Offered Preferred
Stock represented thereby (including dividend, voting, redemption and
liquidation rights). See "Depositary Shares" below. The following statements
concerning Depositary Shares, Depositary Receipts (as defined below) and the
Deposit Agreement do not purport to be complete and are qualified in their
entirety by reference to the forms of such documents, which have been filed as
exhibits to the Registration Statement of which this Prospectus is a part.
Rank. Each series of Offered Preferred Stock will rank, with
respect to voting powers, preferences or relative, participating, optional and
other special rights and the qualifications, limitations and restrictions
thereof, including with respect to the payment of dividends and the
distribution of assets, whether upon liquidation or otherwise, junior to any
series of capital stock of the Company expressly stated to be senior to such
series of the Offered Preferred Stock, senior to any class of capital stock
expressly stated to be junior to such series of the Offered Preferred Stock,
and on a parity with each other series of Offered Preferred Stock and all
other classes of capital stock of the Company. The Offered Preferred Stock
will rank, as to payment of dividends and amounts payable on liquidation,
prior to the Common Stock (see "Common Stock" below) and on a parity with the
ESOP Preferred Stock, each series of the Existing Cumulative Preferred Stock
and, if issued, the Capital Units Cumulative Preferred Stock.
Dividends. Holders of shares of the Offered Preferred Stock
will be entitled to receive, when and as declared by the Board of Directors or
the Committee out of funds legally available for payment, cumulative cash
dividends at an annual rate set forth in, or determined or calculated in
accordance with the method or formula set forth in, and on the dates, for the
periods and otherwise in the manner set forth in, the Prospectus Supplement.
Dividends on the Offered Preferred Stock will be payable to holders of record
as they appear on the stock books of the Company on such record dates, not
more than 60 days nor less than 10 days preceding the payment dates thereof,
as shall be fixed by the Board of Directors or the Committee. Dividends will
be cumulative from the date of original issue of such series. The Offered
Preferred Stock will be junior as to dividends to any Preferred Stock that may
be issued in the future that is expressly senior as to dividends to the
Offered Preferred Stock. If at any time the Company has failed to pay accrued
dividends on any such senior shares at the time such dividends are payable,
the Company may not pay any dividend on any series of Offered Preferred Stock
or redeem or otherwise repurchase any shares of any series of Offered
Preferred Stock until such accumulated but unpaid dividends on such senior
shares have been paid (or set aside for payment) in full by the Company.
No dividends may be declared or paid or set apart for payment
on any Preferred Stock ranking on a parity as to dividends with the Offered
Preferred Stock unless there shall also be or have been declared and paid or
set apart for payment on the outstanding shares of Offered Preferred Stock
dividends for all dividend payment periods of each series of the Offered
Preferred Stock ending on or before the dividend payment date of such parity
stock, ratably in proportion to the respective amounts of dividends (i)
accumulated and unpaid or payable on such parity stock, on the one hand, and
(ii) accumulated and unpaid or payable through the dividend payment period or
periods of each series of the Offered Preferred Stock next preceding such
dividend payment date, on the other hand.
Except as set forth above, unless full cumulative dividends on
the outstanding shares of Offered Preferred Stock have been paid, dividends
(other than in Common Stock) may not be paid or declared and set aside for
payment and other distributions may not be made upon the Common Stock or on
any other Preferred Stock of the Company ranking junior to or on a parity with
the Offered Preferred Stock as to dividends (which parity Preferred Stock
currently includes the ESOP Preferred Stock and the Existing Cumulative
Preferred Stock and, if issued, would include the Capital Units Cumulative
Preferred Stock), nor may any Common Stock or such other Preferred Stock of
the Company be redeemed, purchased or otherwise acquired by the Company for
any consideration or any payment be made to or available for a sinking fund
for the redemption of any shares of such stock; provided, however, that any
monies theretofore deposited in any sinking fund with respect to any Preferred
Stock in compliance with the provisions of such sinking fund may thereafter be
applied to the purchase or redemption of such Preferred Stock in accordance
with the terms of such sinking fund, regardless of whether at the time of such
application full cumulative dividends upon shares of the Offered Preferred
Stock outstanding on the last dividend payment date for any series of Offered
Preferred Stock shall have been paid or declared and set apart for payment;
and provided further that any such junior or parity Preferred Stock or Common
Stock may be converted into or exchanged for stock of the Company ranking
junior to the Offered Preferred Stock as to dividends.
The amount of dividends payable for the initial dividend period
or any period shorter than a full dividend period shall be computed on the
basis of a 360-day year of twelve 30-day months. Accrued but unpaid dividends
will not bear interest.
The ability of the Company, as a holding company, to pay
dividends on the Offered Preferred Stock will be dependent upon, among other
factors, the Company's earnings, financial condition and cash requirements at
the time such payment is considered, and the payment to it of dividends or
principal and interest by, or the availability of other funds from, its
subsidiaries. Dividends, loans and advances from certain subsidiaries to the
Company are restricted by legal requirements, including (in the case of MS &
Co. and DWR ) net capital requirements under the Exchange Act and under rules
of certain exchanges and other regulatory bodies and (in the case of Greenwood
Trust Company and other bank subsidiaries) by banking regulations. Such
restrictions could limit the ability of the Company to pay dividends to its
stockholders.
Liquidation Rights. In the event of any liquidation,
dissolution or winding up of the Company, the holders of shares of Offered
Preferred Stock will be entitled to receive out of the assets of the Company
available for distribution to stockholders, before any distribution is made to
holders of (i) any other shares of Preferred Stock ranking junior to the
Offered Preferred Stock as to rights upon liquidation, dissolution or winding
up that may be issued in the future or (ii) Common Stock, liquidating
distributions in an amount equal to the stated value per share of each series
of Offered Preferred Stock, as set forth in the applicable Prospectus
Supplement, plus accrued and accumulated but unpaid dividends to the date of
final distribution; but the holders of the shares of Offered Preferred Stock
will not be entitled to receive the liquidation price of such shares until the
liquidation preference of any other shares of the Company's capital stock
ranking senior to the Offered Preferred Stock as to rights upon liquidation,
dissolution or winding up shall have been paid (or a sum set aside therefor
sufficient to provide for payment) in full. If upon any liquidation,
dissolution or winding up of the Company, the amounts payable with respect to
the Offered Preferred Stock and any other Preferred Stock ranking as to rights
upon liquidation, dissolution or winding up on a parity with the Offered
Preferred Stock are not paid in full, the holders of the Offered Preferred
Stock and of such other Preferred Stock will share ratably in any such
distribution in proportion to the full respective preferential amounts to
which they are entitled. After payment of the full amount of the liquidating
distribution to which they are entitled, the holders of the Offered Preferred
Stock will not be entitled to any further participation in any distribution of
assets by the Company. Neither a consolidation or merger of the Company with
or into another corporation nor a merger of another corporation with or into
the Company nor a sale or transfer of all or part of the Company's assets for
cash or securities shall be considered a liquidation, dissolution or winding
up of the Company.
Because the Company is a holding company, its rights and the
rights of its creditors and its stockholders, including the holders of the
shares of Offered Preferred Stock, to participate in the assets of any
subsidiary upon the latter's liquidation or recapitalization may be subject to
the prior claims of the subsidiary's creditors, except to the extent that the
Company may itself be a creditor with recognized claims against the subsidiary.
Optional Redemption. The Prospectus Supplement will indicate
whether, and if so on what terms, shares of a series of the Offered Preferred
Stock will be subject to any mandatory redemption or sinking fund provision.
The Prospectus Supplement will also indicate whether, and if so on what terms
(including the date on or after which redemption may occur), shares of a
series of the Offered Preferred Stock will be redeemable. Any such redemption
would be effected upon not less than 30 days' notice at a redemption price of
not less than the stated value per share of the applicable series of Offered
Preferred Stock plus accrued and accumulated but unpaid dividends to but
excluding the date fixed for redemption. If full cumulative dividends on all
outstanding shares of Offered Preferred Stock have not been paid, no shares of
Offered Preferred Stock may be redeemed in part and the Company may not
purchase or acquire any shares of Offered Preferred Stock otherwise than
pursuant to a purchase or exchange offer made on the same terms to all holders
of the Offered Preferred Stock. If fewer than all the outstanding shares of a
series of Offered Preferred Stock are to be redeemed, the Company will select
those to be redeemed by lot or a substantially equivalent method.
Voting Rights. Unless otherwise determined by the Board of
Directors of the Company and indicated in the Prospectus Supplement, holders
of the Offered Preferred Stock will not have any voting rights except as set
forth below or as otherwise from time to time required by law. Whenever
dividends on any shares of Offered Preferred Stock or any other class or
series of stock ranking on a parity with the Offered Preferred Stock with
respect to the payment of dividends shall be in arrears for dividend periods,
whether or not consecutive, containing in the aggregate a number of days
equivalent to six calendar quarters, the holders of shares of each series of
Offered Preferred Stock (voting separately as a class with all other series of
Preferred Stock (including the Existing Cumulative Preferred Stock) upon which
like voting rights have been conferred and are exercisable) will be entitled
to vote for the election of two of the authorized number of directors of the
Company at the next annual meeting of stockholders and at each subsequent
meeting until all dividends accumulated on such series of Offered Preferred
Stock have been fully paid or set apart for payment. The term of office of all
directors elected by the holders of Preferred Stock shall terminate
immediately upon the termination of the right of the holders of Preferred
Stock to vote for directors. Each holder of shares of the Offered Preferred
Stock will have one vote for each share of Offered Preferred Stock held.
So long as any shares of the Offered Preferred Stock remain
outstanding, the Company shall not, without the consent of the holders of at
least two-thirds of the shares of Offered Preferred Stock outstanding at the
time, voting separately as a class with all other series of Preferred Stock
(including the Existing Cumulative Preferred Stock and, if issued, the Capital
Units Cumulative Preferred Stock) upon which like voting rights have been
conferred and are exercisable, (i) issue or increase the authorized amount of
any class or series of stock ranking prior to the outstanding Offered
Preferred Stock as to dividends or upon liquidation or (ii) amend, alter or
repeal the provisions of the Company's Certificate of Incorporation or of the
resolutions contained in the Certificate of Designation, whether by merger,
consolidation or otherwise, so as to materially and adversely affect any
power, preference or special right of the outstanding Offered Preferred Stock
or the holders thereof; provided, however, that any increase in the amount of
the authorized Common Stock or authorized Preferred Stock or the creation and
issuance of other series of Common Stock or Preferred Stock ranking on a
parity with or junior to the Offered Preferred Stock as to dividends and upon
liquidation shall not be deemed to materially and adversely affect such
powers, preferences or special rights.
The transfer agent, dividend disbursing agent and registrar for
each series of Offered Preferred Stock will be The Bank of New York.
Depositary Shares
General. The Company may, at its option, elect to offer
fractional shares or some multiple of shares of Offered Preferred Stock,
rather than individual shares of Offered Preferred Stock. In the event such
option is exercised, the Company will issue receipts for Depositary Shares,
each of which will represent a fraction or a multiple (to be set forth in the
Prospectus Supplement relating to a particular series of Offered Preferred
Stock) of a share of a particular series of Offered Preferred Stock as
described below.
The shares of any series of Offered Preferred Stock represented
by Depositary Shares will be deposited under a Deposit Agreement (the "Deposit
Agreement") among the Company, The Bank of New York, as depositary (the
"Preferred Stock Depositary"), and the holders from time to time of depositary
receipts issued thereunder. Subject to the terms of the Deposit Agreement,
each holder of a Depositary Share will be entitled, in proportion to the
applicable fraction or multiple of a share of Offered Preferred Stock
represented by such Depositary Share, to all the rights and preferences of the
Offered Preferred Stock represented thereby (including dividend, voting and
liquidation rights).
The Depositary Shares will be evidenced by depositary receipts
issued pursuant to the Deposit Agreement ("Depositary Receipts"). Depositary
Receipts will be distributed to those persons purchasing the fractional or
multiple shares of the related series of Offered Preferred Stock. Copies of
the forms of Deposit Agreement and Depositary Receipt are filed as exhibits to
the Registration Statement of which this Prospectus is a part, and the
following summary is qualified in its entirety by reference to such exhibits.
Immediately following the issuance of shares of a series of Offered Preferred
Stock by the Company, the Company will deposit such shares with the Preferred
Stock Depositary, which will then issue and deliver the Depositary Receipts to
the purchasers thereof. Depositary Receipts will only be issued evidencing
whole Depositary Shares. A Depositary Receipt may evidence any number of whole
Depositary Shares.
Pending the preparation of definitive engraved Depositary
Receipts, the Preferred Stock Depositary may, upon the written order of the
Company, issue temporary Depositary Receipts substantially identical to (and
entitling the holders thereof to all the rights pertaining to) the definitive
Depositary Receipts but not in definitive form. Definitive Depositary Receipts
will be prepared thereafter without unreasonable delay, and such temporary
Depositary Receipts will be exchangeable for definitive Depositary Receipts at
the Company's expense.
Dividends and Other Distributions. The Preferred Stock
Depositary will distribute all cash dividends or other cash distributions
received in respect of the related series of Offered Preferred Stock to the
record holders of Depositary Shares relating to such series of Offered
Preferred Stock in proportion to the number of such Depositary Shares owned
by such holders.
In the event of a distribution other than in cash, the
Preferred Stock Depositary will distribute property received by it to the
record holders of Depositary Shares entitled thereto in proportion to the
number of Depositary Shares owned by such holders, unless the Preferred Stock
Depositary determines that such distribution cannot be made proportionately
among such holders or that it is not feasible to make such distribution, in
which case the Preferred Stock Depositary may, with the approval of the
Company, sell such property and distribute the net proceeds from such sale to
such holders in proportion to the number of Depositary Shares owned by such
holders.
The amount distributed in any of the foregoing cases will be
reduced by any amounts required to be withheld by the Company or the Preferred
Stock Depositary on account of taxes or other governmental charges.
Withdrawal of Stock. Upon surrender of the Depositary Receipts
at the corporate trust office of the Preferred Stock Depositary and upon
payment of the taxes, charges and fees provided for in the Deposit Agreement
and subject to the terms thereof, the holder of the Depositary Shares
evidenced thereby is entitled to delivery at such office, to or upon his or
her order, of the number of whole shares of the related series of Offered
Preferred Stock and any money or other property, if any, represented by such
Depositary Shares. Holders of Depositary Shares will be entitled to receive
whole shares of the related series of Offered Preferred Stock, but holders of
such whole shares of Offered Preferred Stock will not thereafter be entitled
to deposit such shares of Offered Preferred Stock with the Preferred Stock
Depositary or to receive Depositary Shares therefor. If the Depositary
Receipts delivered by the holder evidence a number of Depositary Shares in
excess of the number of Depositary Shares representing the number of whole
shares of the related series of Offered Preferred Stock to be withdrawn, the
Preferred Stock Depositary will deliver to such holder, or upon his or her
order, at the same time a new Depositary Receipt evidencing such excess number
of Depositary Shares.
Voting the Offered Preferred Stock. Upon receipt of notice of
any meeting at which the holders of any series of the Offered Preferred Stock
are entitled to vote, the Preferred Stock Depositary will mail the information
contained in such notice of meeting to the record holders of the Depositary
Shares relating to such series of Offered Preferred Stock. Each record holder
of such Depositary Shares on the record date (which will be the same date as
the record date for the related series of Offered Preferred Stock) will be
entitled to instruct the Preferred Stock Depositary as to the exercise of the
voting rights pertaining to the number of shares of the series of Offered
Preferred Stock represented by such holder's Depositary Shares. The Preferred
Stock Depositary will endeavor, insofar as practicable, to vote or cause to
be voted the number of shares of the Offered Preferred Stock represented by
such Depositary Shares in accordance with such instructions, provided the
Preferred Stock Depositary receives such instructions sufficiently in advance
of such meeting to enable it to so vote or cause to be voted the shares of
Offered Preferred Stock, and the Company will agree to take all reasonable
action that may be deemed necessary by the Preferred Stock Depositary in order
to enable the Preferred Stock Depositary to do so. The Preferred Stock
Depositary will abstain from voting shares of the Offered Preferred Stock to
the extent it does not receive specific instructions from the holders of
Depositary Shares representing such Offered Preferred Stock.
Redemption of Depositary Shares. If a series of the Offered
Preferred Stock underlying the Depositary Shares is subject to redemption, the
Depositary Shares will be redeemed from the proceeds received by the Preferred
Stock Depositary resulting from any redemption, in whole or in part, of such
series of the Offered Preferred Stock held by the Preferred Stock Depositary.
The redemption price per Depositary Share will be equal to the applicable
fraction or multiple of the redemption price per share payable with respect to
such series of the Offered Preferred Stock. If the Company redeems shares of a
series of Offered Preferred Stock held by the Preferred Stock Depositary, the
Preferred Stock Depositary will redeem as of the same redemption date the
number of Depositary Shares representing the shares of Offered Preferred Stock
so redeemed. If less than all the Depositary Shares are to be redeemed, the
Depositary Shares to be redeemed will be selected by lot or substantially
equivalent method determined by the Preferred Stock Depositary.
After the date fixed for redemption, the Depositary Shares so
called for redemption will no longer be deemed to be outstanding and all
rights of the holders of the Depositary Shares will cease, except the right to
receive the moneys payable upon such redemption and any money or other
property to which the holders of such Depositary Shares were entitled upon
such redemption, upon surrender to the Preferred Stock Depositary of the
Depositary Receipts evidencing such Depositary Shares. Any funds deposited by
the Company with the Preferred Stock Depositary for any Depositary Shares that
the holders thereof fail to redeem will be returned to the Company after a
period of two years from the date such funds are so deposited.
Amendment and Termination of the Deposit Agreement. The form
of Depositary Receipt evidencing the Depositary Shares and any provision of
the Deposit Agreement may at any time and from time to time be amended by
agreement between the Company and the Preferred Stock Depositary. However, any
amendment that materially and adversely alters the rights of the holders of
Depositary Shares will not be effective unless such amendment has been
approved by the holders of at least a majority of the Depositary Shares then
outstanding. Notwithstanding the foregoing, in no event may any amendment
impair the right of any holder of any Depositary Shares, upon surrender of the
Depositary Receipts evidencing such Depositary Shares and subject to any
conditions specified in the Deposit Agreement, to receive shares of the
related series of Offered Preferred Stock and any money or other property
represented thereby, except in order to comply with mandatory provisions of
applicable law. The Deposit Agreement may be terminated by the Company at any
time upon not less than 60 days' prior written notice to the Depositary, in
which case, on a date that is not later than 30 days after the date of such
notice, the Preferred Stock Depositary shall deliver or make available for
delivery to holders of Depositary Shares, upon surrender of the Depositary
Receipts evidencing such Depositary Shares, such number of whole or fractional
shares of the related series of Offered Preferred Stock as are represented by
such Depositary Shares. The Deposit Agreement shall automatically terminate
after there has been a final distribution in respect of the related series of
Offered Preferred Stock in connection with any liquidation, dissolution or
winding up of the Company and such distribution has been distributed to the
holders of Depositary Shares.
Charges of Preferred Stock Depositary. The Company will pay
all transfer and other taxes and governmental charges arising solely from the
existence of the depositary arrangements. The Company will pay charges of the
Preferred Stock Depositary, including charges in connection with the initial
deposit of the related series of Offered Preferred Stock and the initial
issuance of the Depositary Shares and all withdrawals of shares of the related
series of Offered Preferred Stock, except that holders of Depositary Shares
will pay other transfer and other taxes and governmental charges and such
other charges as are expressly provided in the Deposit Agreement to be for
their accounts.
Miscellaneous. The Preferred Stock Depositary will forward to
the holders of Depositary Shares all reports and communications from the
Company that are delivered to the Preferred Stock Depositary and which the
Company is required to furnish to the holders of the Offered Preferred Stock.
Neither the Preferred Stock Depositary nor the Company will be
liable if it is prevented or delayed by law or any circumstance beyond its
control in performing its obligations under the Deposit Agreement. The
obligations of the Company and the Preferred Stock Depositary under the
Deposit Agreement will be limited to performance with best judgment and in
good faith of their duties thereunder, except that they are liable for
negligence and willful misconduct in the performance of their duties
thereunder, and they will not be obligated to appear in, prosecute or defend
any legal proceeding in respect of any Depositary Receipts, Depositary Shares
or series of Offered Preferred Stock unless satisfactory indemnity is
furnished. The Preferred Stock Depositary and the Company may rely on advice
of legal counsel or accountants of their choice, or information provided by
persons presenting Offered Preferred Stock for deposit, holders of Depositary
Shares or other persons believed in good faith to be competent and on documents
believed to be genuine.
The Preferred Stock Depositary's corporate trust office is
currently located at 101 Barclay Street, New York, New York 10286. The
Preferred Stock Depositary will act as transfer agent and registrar for
Depositary Receipts and if shares of a series of Offered Preferred Stock are
redeemable, the Preferred Stock Depositary will act as redemption agent for
the corresponding Depositary Receipts.
Resignation and Removal of Preferred Stock Depositary. The
Preferred Stock Depositary may resign at any time by delivering to the Company
written notice of its election to do so, and the Company may at any time
remove the Preferred Stock Depositary, any such resignation or removal to take
effect upon the appointment of a successor Preferred Stock Depositary, which
successor Preferred Stock Depositary must be appointed within 60 days after
delivery of the notice of resignation or removal and must be a bank or trust
company having its principal office in the United States and having a combined
capital and surplus of at least $50,000,000.
Common Stock
Each holder of Common Stock is entitled to one vote per share
on all matters voted on generally by the stockholders, including the election
of directors, and except as otherwise required by law or except as provided
with respect to any series of Preferred Stock (including the ESOP Preferred
Stock), the holders of such shares, together with the holders of ESOP
Preferred Stock, will possess all voting power. The Board is divided into
three classes of directors with the term of one class expiring at each annual
meeting of stockholders. Because the Company's Certificate of Incorporation
does not provide for cumulative voting rights, the holders of a plurality of
the voting power of the then outstanding shares of capital stock entitled to
be voted generally in the election of directors (the "Voting Stock")
represented at a meeting will be able to elect all the directors standing for
election at such meeting. As of January 26, 1998, certain current and former
Managing Directors and Principals of MS & Co. beneficially owned in the
aggregate approximately 80,642,355 shares of Common Stock subject to voting
restrictions contained in certain agreements (the "Voting Agreements"). As of
such date, such shares constituted approximately 12.97% of the votes that are
entitled to be cast at any meeting of the Company's stockholders.
The holders of the Common Stock are entitled to share equally
in such dividends as may be declared by the Board of Directors out of funds
legally available therefor, but only after payment of dividends required to be
paid on outstanding shares of Offered Preferred Stock, ESOP Preferred Stock,
Existing Cumulative Preferred Stock and any other class or series of stock
having preference over the Common Stock as to dividends, including, if issued,
the Capital Units Cumulative Preferred Stock. The ability of the Company, as a
holding company, to pay dividends on its Common Stock will be dependent upon,
among other factors, the Company's earnings, financial condition and cash
requirements at the time such payment is considered, and payment to it of
dividends or principal and interest by, or the availability of other funds
from, its subsidiaries. Dividends, loans and advances from certain
subsidiaries to the Company are restricted by legal requirements, including
(in the case of MS & Co. and DWR ) net capital requirements under the Exchange
Act and under rules of certain exchanges and other regulatory bodies and (in
the case of Greenwood Trust Company and other bank subsidiaries) by banking
regulations. Such restrictions could limit the ability of the Company to pay
dividends to its stockholders.
Upon voluntary or involuntary liquidation, dissolution or
winding up of the Company, the holders of the Common Stock share pro rata in
the assets remaining after payments to creditors and provision for the
preference of any Offered Preferred Stock, ESOP Preferred Stock, Existing
Cumulative Preferred Stock and any other class or series of stock having
preference over the Common Stock upon liquidation, dissolution or winding up
that may be then outstanding, including, if issued, the 7.82% Preferred Stock,
the 7.80% Preferred Stock, the 9.00% Preferred Stock, the 8.40% Preferred
Stock, the 8.20% Preferred Stock and the 8.03% Preferred Stock. There are no
preemptive or other subscription rights, conversion rights or redemption or
sinking fund provisions with respect to shares of Common Stock.
All of the outstanding shares of Common Stock are fully paid
and nonassessable.
The transfer agent and registrar for the Common Stock is Dean
Witter Trust FSB.
ESOP Convertible Preferred Stock
The ESOP Preferred Stock is senior to the Company's Common
Stock and ranks on a parity with the Offered Preferred Stock and the Existing
Cumulative Preferred Stock (and, if issued, the Capital Units Cumulative
Preferred Stock) as to the payment of dividends and upon liquidation. The
holders of shares of the ESOP Preferred Stock are entitled to receive, when
declared out of funds legally available therefor, cash dividends in the amount
of $2.78 per share per annum, subject to adjustment, payable either annually
or semiannually, at the election of the Board of Directors of the Company.
Holders of ESOP Preferred Stock are entitled to receive $35.875 per share,
subject to adjustment (the "ESOP Preferred Stock Liquidation Price"), upon
dissolution or liquidation of the Company.
So long as any shares of ESOP Preferred Stock shall be
outstanding, no dividend shall be declared or paid or set apart for payment on
any other series of stock ranking on a parity with the ESOP Preferred Stock as
to dividends (which parity Preferred Stock currently includes the Offered
Preferred Stock and the Existing Cumulative Preferred Stock and, if issued,
would include the Capital Units Cumulative Preferred Stock), unless there
shall also be or have been declared and paid or set apart for payment on the
ESOP Preferred Stock like dividends for all dividend payment periods of the
ESOP Preferred Stock ending on or before the dividend payment date of such
parity stock, ratably in proportion to the respective amounts of dividends (i)
accumulated and unpaid or payable on such parity stock, on the one hand, and
(ii) accumulated and unpaid through the dividend payment period or periods of
the ESOP Preferred Stock next preceding such dividend payment date, on the
other hand.
Holders of ESOP Preferred Stock are entitled to vote on all
matters submitted to a vote of the holders of shares of Common Stock, voting
together with the holders of shares of Common Stock as one class. Each share
of ESOP Preferred Stock is entitled to the number of votes equal to 1.35 times
the number of shares of Common Stock into which such share of ESOP Preferred
Stock could be converted on the record date for such vote. Shares of ESOP
Preferred Stock are allocated to each participant in the ESOP on December 31
in each year.
Each share of ESOP Preferred Stock is convertible into shares
of Common Stock by the trustee of the ESOP at any time prior to the date fixed
for redemption of the ESOP Preferred Stock at a conversion rate of one share
of ESOP Preferred Stock to 3.3 shares of Common Stock, which rate is subject
to adjustment. The conversion price per share at which shares of Common Stock
will be issued upon conversion of any shares of ESOP Preferred Stock is
$35.875, subject to adjustment.
The ESOP Preferred Stock is redeemable at the Company's option
at the ESOP Preferred Stock Liquidation Price plus accrued dividends at any
time after September 19, 2000 and prior thereto under certain circumstances at
specified prices. The Company may pay the redemption price of the ESOP
Preferred Stock in cash, in shares of Common Stock or a combination thereof.
Neither ESOP Preferred Stock nor shares of Common Stock issued upon conversion
of ESOP Preferred Stock are subject to the restrictions on voting and
disposition contained in the Voting Agreements.
Existing Cumulative Preferred Stock
Other than as described below, the terms of the 7 3/8%
Preferred Stock, the 7 3/4% Preferred Stock and the Series A Fixed/Adjustable
Rate Preferred Stock are identical. Unless otherwise indicated, the terms and
provisions described below relate to each of the 7 3/8% Preferred Stock, the 7
3/4% Preferred Stock and the Series A Fixed/Adjustable Rate Preferred Stock,
which are collectively referred to as the "Existing Cumulative Preferred
Stock." Unless otherwise indicated below, the terms and provisions described
below for the Existing Cumulative Preferred Stock also relate to the Capital
Units Cumulative Preferred Stock, if issued.
Each series of the Existing Cumulative Preferred Stock and, if
issued, the Capital Units Cumulative Preferred Stock ranks on a parity with
each other and with the Offered Preferred Stock and the ESOP Preferred Stock
and prior to the Common Stock as to payment of dividends and amounts payable
on liquidation. The shares of Existing Cumulative Preferred Stock are fully
paid and nonassessable, are not convertible into Common Stock of the Company
and have no preemptive rights.
Dividends. Holders of the shares of Existing Cumulative
Preferred Stock (except for the Series A Fixed/Adjustable Rate Preferred
Stock) are entitled to receive, when and as declared by the Board of Directors
of the Company out of funds legally available therefor, cumulative cash
dividends payable quarterly at the rate of 7 3/8% per annum, 7 3/4% per annum,
7.82% per annum (if the 7.82% Preferred Stock is issued), 7.80% per annum (if
the 7.80% Preferred Stock is issued), 9.00% per annum (if the 9.00% Preferred
Stock is issued), 8.40% per annum (if the 8.40% Preferred Stock is issued),
8.20% per annum (if the 8.20% Preferred Stock is issued) and 8.03% per annum
(if the 8.03% Preferred Stock is issued), as the case may be. Holders of the
shares of Series A Fixed/Adjustable Rate Preferred Stock are entitled to
receive, when and as declared by the Board of Directors of the Company out of
funds legally available therefor, cumulative cash dividends payable quarterly
at a rate of 5.91% per annum through November 30, 2001 and thereafter at a
rate of .37% plus the highest of the Treasury Bill Rate, the Ten-Year Constant
Maturity Rate and the Thirty-Year Constant Maturity Rate (each as defined in
the applicable Certificate of Designation); provided, however, that the
dividends so payable will not be less than 6.41% nor greater than 12.41% per
annum (subject to certain adjustments described below). The amount of
dividends payable in respect of the 7 3/4% Preferred Stock and the Series A
Fixed/Adjustable Rate Preferred Stock will be adjusted in the event of certain
amendments to the Code in respect of the dividends received deduction. The
Existing Cumulative Preferred Stock will be junior as to dividends to any
preferred stock that may be issued in the future that is expressly senior as
to dividends to the Existing Cumulative Preferred Stock. If at any time the
Company has failed to pay accrued dividends on any such senior shares at the
time such dividends are payable, the Company may not pay any dividend on the
Existing Cumulative Preferred Stock or redeem or otherwise repurchase any
shares of Existing Cumulative Preferred Stock until such accumulated but unpaid
dividends on such senior shares have been paid (or set aside for payment) in
full by the Company.
No dividends may be declared or paid or set apart for payment
on any preferred stock ranking on a parity as to dividends with the Existing
Cumulative Preferred Stock unless there shall also be or have been declared
and paid or set apart for payment on each series of the Existing Cumulative
Preferred Stock dividends for all dividend payment periods of the Existing
Cumulative Preferred Stock ending on or before the dividend payment date of
such parity stock, ratably in proportion to the respective amounts of
dividends (i) accumulated and unpaid or payable on such parity stock, on the
one hand, and (ii) accumulated and unpaid or payable through the dividend
payment period or periods of the Existing Cumulative Preferred Stock next
preceding such dividend payment date, on the other hand.
Except as set forth above, unless full cumulative dividends on
the Existing Cumulative Preferred Stock have been paid, dividends (other than
in Common Stock) may not be paid or declared and set aside for payment and
other distributions may not be made upon the Common Stock or on any other
preferred stock of the Company ranking junior to or on a parity with the
Existing Cumulative Preferred Stock as to dividends (which parity preferred
stock currently includes the Offered Preferred Stock and the ESOP Preferred
Stock), nor may any Common Stock or such other preferred stock of the Company
be redeemed, purchased or otherwise acquired by the Company for any
consideration or any payment be made to or available for a sinking fund for
the redemption of any shares of such stock; provided, however, that any monies
theretofore deposited in any sinking fund with respect to any preferred stock
in compliance with the provisions of such sinking fund may thereafter be
applied to the purchase or redemption of such preferred stock in accordance
with the terms of such sinking fund regardless of whether at the time of such
application full cumulative dividends upon shares of each series of the
Existing Cumulative Preferred Stock outstanding on the last dividend payment
date shall have been paid or declared and set apart for payment; and provided
further that any such junior or parity preferred stock or Common Stock may be
converted into or exchanged for stock of the Company ranking junior to the
Existing Cumulative Preferred Stock as to dividends.
Optional Redemption. The Existing Cumulative Preferred Stock is
not subject to any mandatory redemption or sinking fund provision. The 7 3/8%
Preferred Stock is not redeemable prior to August 30, 1998; the 7 3/4%
Preferred Stock is not redeemable prior to August 30, 2001, except that under
certain circumstances prior thereto, it may be redeemed at specified prices;
the Series A Fixed/Adjustable Rate Preferred Stock is not redeemable prior to
November 30, 2001, except that under certain circumstances prior thereto, it
may be redeemed at specified prices; if issued, the 7.82% Preferred Stock will
not be redeemable prior to November 30, 1998; if issued, the 7.80% Preferred
Stock will not be redeemable prior to February 28, 1999; if issued, the 9.00%
Preferred Stock will not be redeemable prior to February 28, 2000; if issued,
the 8.40% Preferred Stock will not be redeemable prior to August 30, 2000; if
issued, the 8.20% Preferred Stock will not be redeemable prior to November 30,
2000; and if issued, the 8.03 Preferred Stock will not be redeemable prior to
February 28, 2007, except that under certain circumstances prior thereto, it
may be redeemed at specified prices. On or after such dates, the applicable
series of Existing Cumulative Preferred Stock and, if issued, the Capital
Units Cumulative Preferred Stock will be redeemable at the option of the
Company, in whole or in part, upon not less than 30 days' notice at a
redemption price equal to $200.00 per share in the case of each of the series
of Existing Cumulative Preferred Stock and, if issued, each of the series of
Capital Units Cumulative Preferred Stock, in each case plus accrued and
accumulated but unpaid dividends to but excluding the date fixed for
redemption.
Liquidation Rights. In the event of any liquidation,
dissolution or winding up of the Company, the holders of shares of Existing
Cumulative Preferred Stock and, if issued, the Capital Units Cumulative
Preferred Stock will be entitled to receive out of the assets of the Company
available for distribution to stockholders, before any distribution is made to
holders of (i) any other shares of preferred stock ranking junior to the
Existing Cumulative Preferred Stock as to rights upon liquidation, dissolution
or winding up which may be issued in the future and (ii) Common Stock,
liquidating distributions in the amount of $200.00 per share in the case of
each of the series of Existing Cumulative Preferred Stock and, if issued, each
series of the Capital Units Cumulative Preferred Stock, in each case plus
accrued and accumulated but unpaid dividends to the date of final
distribution, but the holders of the shares of Existing Cumulative Preferred
Stock and, if issued, the Capital Units Cumulative Preferred Stock will not be
entitled to receive the liquidation price of such shares until the liquidation
preference of any other shares of the Company's capital stock ranking senior
to the Existing Cumulative Preferred Stock as to rights upon liquidation,
dissolution or winding up shall have been paid (or a sum set aside therefor
sufficient to provide for payment) in full. If upon any liquidation,
dissolution or winding up of the Company, the amounts payable with respect to
the Existing Cumulative Preferred Stock and any other preferred stock ranking
as to rights upon liquidation, dissolution or winding up on a parity with the
Existing Cumulative Preferred Stock (including the Offered Preferred Stock)
are not paid in full, the holders of the Existing Cumulative Preferred Stock
and of such other preferred stock will share ratably in any such distribution
in proportion to the full respective preferential amounts to which they are
entitled. After payment of the full amount of the liquidating distribution to
which they are entitled, the holders of Existing Cumulative Preferred Stock
and, if issued, the Capital Units Cumulative Preferred Stock will not be
entitled to any further participation in any distribution of assets by the
Company.
Voting Rights. Holders of Existing Cumulative Preferred Stock,
which for purposes of this section shall include, if issued, the Capital Units
Cumulative Preferred Stock, do not have any voting rights except as set forth
below or as otherwise from time to time required by law. Whenever dividends on
any series of Existing Cumulative Preferred Stock or any other class or series
of stock ranking on a parity with such series of Existing Cumulative Preferred
Stock with respect to the payment of dividends shall be in arrears for
dividend periods, whether or not consecutive, containing in the aggregate a
number of days equivalent to six calendar quarters, the holders of shares of
such series of Existing Cumulative Preferred Stock (voting separately as a
class with all other series of preferred stock upon which like voting rights
have been conferred and are exercisable) will be entitled to vote for the
election of two of the authorized number of directors of the Company at the
next annual meeting of stockholders and at each subsequent meeting until all
dividends accumulated on such series of Existing Cumulative Preferred Stock
have been fully paid or set aside for payment. The term of office of all
directors elected by the holders of Preferred Stock shall terminate
immediately upon the termination of the right of the holders of Preferred
Stock to vote for directors. Each holder of shares of Existing Cumulative
Preferred Stock will have one vote for each share of Existing Cumulative
Preferred Stock held.
So long as any shares of Existing Cumulative Preferred Stock
remain outstanding, the Company shall not, without the consent of the holders
of at least two-thirds of the shares of each series of Existing Cumulative
Preferred Stock outstanding at the time, voting separately as a class with all
other series of preferred stock upon which like voting rights have been
conferred and are exercisable, (i) issue or increase the authorized amount of
any class or series of stock ranking prior to the Existing Cumulative
Preferred Stock as to dividends or upon liquidation or (ii) amend, alter or
repeal the provisions of the Company's Certificate of Incorporation or of the
resolutions contained in the Certificate of Designation relating to such
series of Existing Cumulative Preferred Stock, whether by merger,
consolidation or otherwise, so as to materially and adversely affect any
power, preference or special right of such series of Existing Cumulative
Preferred Stock or the holders thereof; provided, however, that any increase
in the amount of the authorized Common Stock or authorized preferred stock or
the creation and issuance of other series of Common Stock or preferred stock
ranking on a parity with or junior to the Existing Cumulative Preferred Stock
as to dividends and upon liquidation shall not be deemed to materially and
adversely affect such powers, preferences or special rights.
The transfer agent and registrar for each series of Existing
Cumulative Preferred Stock is The Bank of New York.
Additional Provisions of the Company's Amended and Restated Certificate of
Incorporation and By-laws
Size of the Board of Directors, Removal of Directors and
Filling Vacancies on the Board of Directors. The Company's Certificate of
Incorporation provides for a Board of Directors initially consisting of 14
directors, divided into classes initially consisting of four, four and six
directors, respectively, with initial terms expiring at the annual meetings of
stockholders to be held in 1998, 1999 and 2000, respectively. Thereafter,
directors shall hold office for a term expiring at the third succeeding annual
meeting of stockholders after their election. Under the Company's Amended and
Restated By-Laws ("By-Laws"), a majority of the Board may increase or decrease
the number of directors, except that until December 31, 2000, a three-quarters
vote of the Board will be required to change the number of directors to an odd
number. The Company's Certificate of Incorporation also provides that
directors may be removed only for cause and with the approval of the holders
of at least 80% of the voting power of the Voting Stock, voting together as a
single class. Any vacancy on the Board of Directors or newly created
directorship shall be filled by a majority of the remaining directors then in
office though less than a quorum, and such newly elected director shall serve
for a term expiring at the annual meeting of stockholders at which the term of
office of the class to which they have been elected expires.
Calling Special Meetings of Stockholders. The Company's By-Laws
provide that special meetings of the stockholders may be called at any time
only by the Secretary of the Company at the direction of the Board.
Amendment of Governing Documents. The Company's Certificate of
Incorporation provides that, generally, it can be amended pursuant to the
provisions of the laws of the State of Delaware. Under Section 242 of the
Delaware General Corporation Law (the "DGCL"), the Board may propose, and the
stockholders may adopt by a majority vote of the Voting Stock, an amendment to
the Company's Certificate of Incorporation. However, the Company's
Certificate of Incorporation also provides that the approval of 80% of the
voting power of the Voting Stock, voting together as a single class, is
required in order to amend, repeal or adopt any provision inconsistent with
the provisions in the Certificate relating to amendment of the By-Laws, action
of stockholders and the Board of Directors and to change the provisions
establishing such 80% vote requirement.
The Company's Certificate of Incorporation provides that the
Company's By-Laws may be altered, amended or repealed or new provisions may be
adopted by a majority of the Company's Board of Directors or with the approval
of at least 80% of the voting power of the Voting Stock of the Company, voting
together as a single class. Furthermore, the By-Laws provide that they may be
altered, amended or repealed or new provisions may be adopted by a majority
of the Board of Directors or with the approval of at least 80% of the voting
power of the Voting Stock of the Company; provided, however, that a
three-quarters vote of the Board of Directors is required for the Board of
Directors to amend, alter, repeal or adopt new By-Laws in conflict with the
provisions of the By-Laws relating to the removal of certain officers and
certain amendments of the By-Laws; and provided further, however, that until
December 31, 2000, a three-quarters vote of the Board of Directors is
required for the Board of Directors to amend, alter, repeal or adopt new
By-Laws in conflict with certain provisions of the By-Laws relating to
committees, committee members and chairmen, certain changes to the number
of directors and certain other amendments of the By-Laws.
Limitation of Directors' Liability. Section 102 of the DGCL
allows a corporation to eliminate the personal liability of directors of a
corporation to the corporation or to any of its stockholders for monetary
damages for a breach of fiduciary duty as a director, except in the case where
the director breached his duty of loyalty, failed to act in good faith,
engaged in intentional misconduct or knowingly violated a law, authorized the
payment of a dividend or approved a stock repurchase in violation of the DGCL
or obtained an improper personal benefit. Under the Company's Certificate of
Incorporation, a director of the Company shall not be liable to the Company or
its stockholders for monetary damages for breach of fiduciary duty as a
director, except to the extent such exemption from liability or limitation
thereof is not permitted under the DGCL as in effect or as the same may be
amended.
The Rights Plan
Pursuant to a Rights Agreement (as amended, the "Rights Plan"),
dated as of April 25, 1995 and amended as of February 4, 1997, with The Chase
Manhattan Bank, as rights agent, holders of shares of Common Stock have certain
rights (each a "Right") to purchase from the Company a unit consisting of one
one-thousandth of a share of Series A Preferred Stock at a purchase price of
$175 per unit subject to adjustment. At present, each share of Common Stock
is entitled to one-half Right.
The Rights become exercisable upon the earlier of (i) 10 days
following a public announcement that a person or group of affiliated or
associated persons (an "Acquiring Person") has acquired, or obtained the right
to acquire, beneficial ownership of 15% or more of the outstanding shares of
Common Stock (the "Stock Acquisition Date") and (ii) 10 business days
following the commencement of a tender offer or exchange offer that would
result in a person or group beneficially owning 15% or more of such
outstanding shares of Common Stock. After the Rights become exercisable, the
Rights (other than rights held by an Acquiring Person) will entitle the
holders to purchase, under certain circumstances, either Common Stock or
common stock of the potential acquirer at a substantially reduced price. The
Company is generally entitled to redeem the Rights at a price of $0.01 per
Right at any time until ten days following the Stock Acquisition Date. Until
a Right is exercised, the holder thereof, as such, will have no rights as a
stockholder of the Company, including, without limitation, the right to vote
or to receive dividends. Unless earlier redeemed, the Rights will expire at
the close of business on April 21, 2005.
The foregoing description of the Rights is qualified in its
entirety by reference to the description of the Rights Plan contained in the
Company's Registration Statement or Form 8-A dated April 26, 1995, as amended
by a Form 8-A/A dated May 4, 1995.
GLOBAL SECURITIES
The registered Debt Securities, Warrants, Purchase Contracts
and Units of any series may be issued in the form of one or more fully
registered global Securities (a "Registered Global Security") that will be
deposited with a depositary (a "Depositary") or with a nominee for a
Depositary identified in the Prospectus Supplement relating to such series and
registered in the name of such Depositary or nominee thereof. In such case,
one or more Registered Global Securities will be issued in a denomination or
aggregate denominations equal to the portion of the aggregate principal or
face amount of outstanding registered Securities of the series to be
represented by such Registered Global Securities. Unless and until it is
exchanged in whole for Securities in definitive registered form, a Registered
Global Security may not be transferred except as a whole by the Depositary for
such Registered Global Security to a nominee of such Depositary or by a
nominee of such Depositary to such Depositary or another nominee of such
Depositary or by such Depositary or any such nominee to a successor of such
Depositary or a nominee of such successor.
The specific terms of the depositary arrangement with respect
to any portion of a series of Securities to be represented by a Registered
Global Security will be described in the Prospectus Supplement relating to
such series. The Company anticipates that the following provisions will apply
to all depositary arrangements.
Ownership of beneficial interests in a Registered Global
Security will be limited to persons that have accounts with the Depositary for
such Registered Global Security ("participants") or persons that may hold
interests through participants. Upon the issuance of a Registered Global
Security, the Depositary for such Registered Global Security will credit, on
its book-entry registration and transfer system, the participants' accounts
with the respective principal or face amounts of the Securities represented by
such Registered Global Security beneficially owned by such participants. The
accounts to be credited shall be designated by any dealers, underwriters or
agents participating in the distribution of such Securities. Ownership of
beneficial interests in such Registered Global Security will be shown on, and
the transfer of such ownership interests will be effected only through,
records maintained by the Depositary for such Registered Global Security (with
respect to interests of participants) and on the records of participants (with
respect to interests of persons holding through participants). The laws of
some states may require that certain purchasers of securities take physical
delivery of such securities in definitive form. Such limits and such laws may
impair the ability to own, transfer or pledge beneficial interests in
Registered Global Securities.
So long as the Depositary for a Registered Global Security, or
its nominee, is the registered owner of such Registered Global Security, such
Depositary or such nominee, as the case may be, will be considered the sole
owner or holder of the Securities represented by such Registered Global
Security for all purposes under the applicable Indenture, Warrant Agreement,
Purchase Contract or Unit Agreement. Except as set forth below, owners of
beneficial interests in a Registered Global Security will not be entitled to
have the Securities represented by such Registered Global Security registered
in their names, will not receive or be entitled to receive physical delivery
of such Securities in definitive form and will not be considered the owners or
holders thereof under the applicable Indenture, Warrant Agreement, Purchase
Contract or Unit Agreement. Accordingly, each person owning a beneficial
interest in a Registered Global Security must rely on the procedures of the
Depositary for such Registered Global Security and, if such person is not a
participant, on the procedures of the participant through which such person
owns its interest, to exercise any rights of a holder under the applicable
Indenture, Warrant Agreement, Purchase Contract or Unit Agreement. The Company
understands that under existing industry practices, if it requests any action
of holders or if an owner of a beneficial interest in a Registered Global
Security desires to give or take any action which a holder is entitled to give
or take under the applicable Indenture, Warrant Agreement, Purchase Contract
or Unit Agreement, the Depositary for such Registered Global Security would
authorize the participants holding the relevant beneficial interests to give
or take such action, and such participants would authorize beneficial owners
owning through such participants to give or take such action or would
otherwise act upon the instructions of beneficial owners holding through them.
Principal, premium, if any, and interest payments on Debt
Securities, and any payments to holders with respect to Warrants, Purchase
Contracts or Units, represented by a Registered Global Security registered in
the name of a Depositary or its nominee will be made to such Depositary or its
nominee, as the case may be, as the registered owner of such Registered Global
Security. None of the Company, the Trustees, the Warrant Agents, the Unit
Agents or any other agent of the Company, agent of the Trustees or agent of
the Warrant Agents or Unit Agents will have any responsibility or liability
for any aspect of the records relating to or payments made on account of
beneficial ownership interests in such Registered Global Security or for
maintaining, supervising or reviewing any records relating to such beneficial
ownership interests.
The Company expects that the Depositary for any Securities
represented by a Registered Global Security, upon receipt of any payment of
principal, premium, interest or other distribution of underlying securities or
commodities to holders in respect of such Registered Global Security, will
immediately credit participants' accounts in amounts proportionate to their
respective beneficial interests in such Registered Global Security as shown on
the records of such Depositary. The Company also expects that payments by
participants to owners of beneficial interests in such Registered Global
Security held through such participants will be governed by standing customer
instructions and customary practices, as is now the case with the securities
held for the accounts of customers in bearer form or registered in "street
name," and will be the responsibility of such participants.
If the Depositary for any Securities represented by a
Registered Global Security is at any time unwilling or unable to continue as
Depositary or ceases to be a clearing agency registered under the Exchange
Act, and a successor Depositary registered as a clearing agency under the
Exchange Act is not appointed by the Company within 90 days, the Company will
issue such Securities in definitive form in exchange for such Registered
Global Security. In addition, the Company may at any time and in its sole
discretion determine not to have any of the Securities of a series represented
by one or more Registered Global Securities and, in such event, will issue
Securities of such series in definitive form in exchange for all of the
Registered Global Security or Securities representing such Securities. Any
Securities issued in definitive form in exchange for a Registered Global
Security will be registered in such name or names as the Depositary shall
instruct the relevant Trustee, Warrant Agent or other relevant agent of the
Company, the Trustees or the Warrant Agents. It is expected that such
instructions will be based upon directions received by the Depositary from
participants with respect to ownership of beneficial interests in such
Registered Global Security.
The Securities of a series may also be issued in the form of
one or more bearer global Securities (a "Bearer Global Security") that will be
deposited with a common depositary for Euroclear and Cedel Bank or with a
nominee for such depositary identified in the Prospectus Supplement relating
to such series. The specific terms and procedures, including the specific
terms of the depositary arrangement, with respect to any portion of a series
of Securities to be represented by a Bearer Global Security will be described
in the Prospectus Supplement relating to such series.
PLAN OF DISTRIBUTION
The Company may sell the Securities being offered hereby in
three ways: (i) through agents, (ii) through underwriters and (iii) through
dealers. Any such underwriters, dealers or agents in the United States will
include MS & Co. and/or DWR and any such underwriters, dealers or agents
outside the United States will include MSIL or other affiliates of the Company.
Offers to purchase Securities may be solicited by agents
designated by the Company from time to time. Any such agent, who may be deemed
to be an underwriter as that term is defined in the Securities Act, involved
in the offer or sale of the Securities in respect of which this Prospectus is
delivered will be named, and any commissions payable by the Company to such
agent set forth, in the Prospectus Supplement. Any such agent will be acting
on a reasonable efforts basis for the period of its appointment or, if
indicated in the applicable Prospectus Supplement, on a firm commitment basis.
If any underwriters are utilized in the sale of the Securities
in respect of which this Prospectus is delivered, the Company will enter into
an underwriting agreement with such underwriters at the time of sale to them
and the names of the underwriters and the terms of the transaction will be set
forth in the Prospectus Supplement, which will be used by the underwriters to
make resales of the Securities in respect of which this Prospectus is
delivered to the public.
If a dealer is utilized in the sale of the Securities in
respect of which the Prospectus is delivered, the Company will sell such
Securities to the dealer, as principal. The dealer may then resell such
Securities to the public at varying prices to be determined by such dealer at
the time of resale.
In order to facilitate the offering of the Securities, the
underwriters may engage in transactions that stabilize, maintain or otherwise
affect the price of the Securities or any other securities the prices of which
may be used to determine payments on such Securities. Specifically, the
underwriters may overallot in connection with the offering, creating a short
position in the Securities for their own accounts. In addition, to cover
overallotments or to stabilize the price of the Securities or of any such
other securities, the underwriters may bid for, and purchase, the Securities or
any such other securities in the open market. Finally, in any offering of the
Securities through a syndicate of underwriters, the underwriting syndicate may
reclaim selling concessions allowed to an underwriter or a dealer for
distributing the Securities in the offering if the syndicate repurchases
previously distributed Securities in transactions to cover syndicate short
positions, in stabilization transactions or otherwise. Any of these
activities may stabilize or maintain the market price of the Securities above
independent market levels. The underwriters are not required to engage in
these activities, and may end any of these activities at any time.
Securities may also be offered and sold, if so indicated in the
Prospectus Supplement, in connection with a remarketing upon their purchase,
in accordance with their terms, by one or more firms, including MS & Co., MSIL
and DWR ("remarketing firms"), acting as principals for their own accounts or
as agents for the Company. Any remarketing firm will be identified and the
terms of its agreement, if any, with the Company and its compensation will be
described in the Prospectus Supplement.
Remarketing firms, agents, underwriters and dealers may be
entitled under agreements which may be entered into with the Company to
indemnification by the Company against certain civil liabilities, including
liabilities under the Securities Act, and may be customers of, engage in
transactions with or perform services for the Company in the ordinary course
of business.
If so indicated in the Prospectus Supplement, the Company will
authorize agents, underwriters or dealers to solicit offers by certain
purchasers to purchase Offered Debt Securities or Offered Warrants, Purchase
Contracts or Units, as the case may be, from the Company at the public
offering price set forth in the Prospectus Supplement pursuant to delayed
delivery contracts providing for payment and delivery on a specified date in
the future. Such contracts will be subject to only those conditions set forth
in the Prospectus Supplement, and the Prospectus Supplement will set forth the
commission payable for solicitation of such offers.
Any underwriter, agent or dealer utilized in the initial
offering of Securities will not confirm sales to accounts over which it
exercises discretionary authority without the prior specific written approval
of its customer.
MS & Co., MSIL and DWR are wholly owned subsidiaries of the
Company. Each initial offering of Securities will be conducted in compliance
with the requirements of Rule 2720 of the National Association of Securities
Dealers, Inc. (the "NASD") regarding a NASD member firm's distributing the
securities of an affiliate. Following the initial distribution of any
Securities, MS & Co., MSIL, DWR and other affiliates of the Company may offer
and sell such Securities in the course of their business as broker-dealers
(subject, in the case of Preferred Stock and Depositary Shares, to obtaining
any necessary approval of the NYSE for any such offers and sales by MS & Co.
and DWR ). MS & Co., MSIL, DWR and such other affiliates may act as principals
or agents in such transactions. This Prospectus may be used by MS & Co., MSIL,
DWR and such other affiliates in connection with such transactions. Such
sales, if any, will be made at varying prices related to prevailing market
prices at the time of sale or otherwise. None of MS & Co., MSIL, DWR or any
such other affiliate is obligated to make a market in any Securities and may
discontinue any market-making activities at any time without notice.
LEGAL MATTERS
The validity of the Securities will be passed upon for the
Company by Brown & Wood LLP, or other counsel who is satisfactory to MS & Co.,
MSIL or DWR, as the case may be, and who may be an officer of the Company.
Certain legal matters relating to the Securities will be passed upon for the
Underwriters by Davis Polk & Wardwell. Davis Polk & Wardwell has in the past
represented the Company and continues to represent the Company on a regular
basis and in a variety of matters, including in connection with its merchant
banking and leveraged capital activities.
EXPERTS
The consolidated financial statements and financial statement
schedules of the Company and its subsidiaries, as of fiscal year end 1997 and
1996 and for each of the three years in the period ended fiscal year end 1997
included in and incorporated by reference in the Company's Annual Report on
Form 10-K dated November 30, 1997 have been audited by Deloitte & Touche
LLP, independent auditors, as set forth in their reports thereon and
incorporated herein by reference. The financial statements and financial
statement schedule of Morgan Stanley as of November 30, 1996 and for each
of the two years in the period ended November 30, 1996 have been audited by
Ernst & Young LLP, independent auditors, as stated in their report
incorporated by reference herein. Such consolidated financial statements
have been incorporated herein by reference in reliance upon the respective
reports given upon the authority of such firms as experts in accounting and
auditing.
ERISA MATTERS FOR PENSION PLANS AND INSURANCE COMPANIES
The Company and certain affiliates of the Company, including MS
& Co. and DWR , may each be considered a "party in interest" within the
meaning of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), or a "disqualified person" within the meaning of the Code with
respect to many employee benefit plans. Prohibited transactions within the
meaning of ERISA or the Code may arise, for example, if the Debt Securities,
Warrants or Purchase Contracts (or any Units including Debt Securities,
Warrants or Purchase Contracts) are acquired by or with the assets of a
pension or other employee benefit plan with respect to which MS & Co., DWR or
any of their affiliates is a service provider, unless such Debt Securities,
Warrants or Purchase Contracts (or any Units including Debt Securities,
Warrants or Purchase Contracts) are acquired pursuant to an exemption for
transactions effected on behalf of such plan by a "qualified professional
asset manager" or pursuant to any other available exemption. The assets of a
pension or other employee benefit plan may include assets held in the general
account of an insurance company that are deemed to be "plan assets" under
ERISA. In addition, employee benefit plans subject to ERISA (or insurance
companies deemed to be investing ERISA plan assets) purchasing Universal
Warrants or Purchase Contracts should consider the possible implications of
owning the securities underlying such instruments in the event of settlement by
physical delivery. Any insurance company or pension or employee benefit plan
proposing to invest in the Debt Securities, Warrants or Purchase Contracts (or
any Units including Debt Securities, Warrants or Purchase Contracts) should
consult with its legal counsel.
MORGAN STANLEY, DEAN WITTER,
DISCOVER & CO.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following are the expenses of the issuance and distribution
of the securities being registered, all of which will be paid by the
registrant. Other than the registration fee and the NASD filing fee, all of
such expenses are estimated.
Registration fee................................................ $2,360,000
NASD filing fee................................................. 30,500
Blue Sky fees and expenses...................................... 10,000
Rating agency fees.............................................. 250,000
Printing and engraving expenses................................. 775,000
Legal fees and expenses......................................... 300,000
Accounting fees and expenses.................................... 75,000
Unit Agents', Warrant Agents', Trustees' and Preferred Stock
Depositary's fees and expenses (including counsel fees)... 135,000
Total..................................................... $3,935,500
Item 15. Indemnification of Officers and Directors
Article VIII of the Amended and Restated Certificate of
Incorporation of the Company ("Certificate of Incorporation") and Section 6.07
of the Amended and Restated By-Laws of the Company ("By-Laws"), each as
amended to date, provide for the indemnification of directors and officers.
Under these provisions, any person who is a director or officer of the Company
or a corporation a majority of the capital stock (other than directors'
qualifying shares) of which is owned directly or indirectly by the Company (a
"Subsidiary") shall be indemnified by the Company to the fullest extent
permitted by applicable law. The Company's Certificate of Incorporation and
By-Laws also provide that the Company may, by action of the Board of
Directors, provide indemnification to any person who is or was an employee or
agent (other than a director or officer) of the Company or a Subsidiary and to
any person serving as a director, officer, partner, member, employee or agent
of another corporation, partnership, limited liability company, joint venture,
trust or other enterprise at the request of the Company or a Subsidiary, to
the same scope and effect as the foregoing indemnification of directors and
officers of the Company.
The right to indemnification under the By-Laws includes the
right to be paid the expenses incurred in connection with any proceeding in
advance of its final disposition upon receipt (unless the Company upon
authorization of the Board of Directors waives said requirement to the extent
permitted by applicable law) of an undertaking by or on behalf of such person
to repay such amount if it shall ultimately be determined that such person is
not entitled to be indemnified by the Company.
Under the By-Laws, the Company has the power to purchase and
maintain insurance on behalf of any person who is or was a director, officer,
partner, member, employee or agent of the Company or a Subsidiary, or of
another corporation, partnership, limited liability company, joint venture,
trust or other enterprise, against any expense, liability or loss whether or
not the Company or a Subsidiary would have the power to indemnify him against
such expense, liability or loss under the provisions of applicable law.
The Company has in effect insurance policies in the amount of
$125 million for general officers' and directors' liability insurance and $25
million for fiduciary liability insurance covering all of the Company's
directors and officers in certain instances where by law they may not be
indemnified by the Company.
The forms of Underwriting Agreements and Distribution
Agreements filed as Exhibits 1-a, 1-b, 1-c and 1-d hereto, and incorporated
herein by reference, contain certain provisions relating to the
indemnification of the Company's directors, officers and controlling persons.
Item 16. Exhibits
Exhibit
Number Description
- ------- ------------
1-a Form of Underwriting Agreements for Debt Securities, Warrants,
Purchase Contracts and Units (previously filed as an
exhibit to the Company's Registration Statement on Form S-3,
Registration No. 333-27919, and incorporated herein by
reference).
1-b Form of Underwriting Agreement for Preferred Stock and
Depositary Shares (previously filed as an exhibit to the
Company's Registration Statement on Form S-3, Registration
No. 333-27919, and incorporated herein by reference).
1-c Form of U.S. Distribution Agreement (previously filed as an
exhibit to the Company's Registration Statement on Form
S-3, Registration No. 333-27919, and incorporated herein by
reference).
1-d Form of Euro Distribution Agreement (previously filed as an
exhibit to the Company's Registration Statement on Form
S-3, Registration No. 333-27919, and incorporated herein by
reference).
4-a Amended and Restated Certificate of Incorporation of the Company
(previously filed as an exhibit to the Company's Current
Report on Form 8-K dated May 31, 1997 and incorporated
herein by reference).
4-b Form of Certificate of Designation of Offered Preferred Stock
(previously filed as an exhibit to the Company's
Registration Statement on Form S-3, Registration No. 333-
27919, and incorporated herein by reference).
4-c Form of Certificate of Offered Preferred Stock (previously
filed as an exhibit to the Company's Registration Statement
on Form S-3, Registration No. 333-27919, and incorporated
herein by reference).
4-d Form of Deposit Agreement (including Form of Depositary Receipt)
(previously filed as an exhibit to the Company's
Registration Statement on Form S-3, Registration No. 333-
27919, and incorporated herein by reference).
4-e Senior Indenture dated as of April 15, 1989 between Morgan
Stanley and The Chase Manhattan Bank (formerly known as
Chemical Bank), Trustee (previously filed as an exhibit to
Morgan Stanley's Annual Report on Form 10-K for the fiscal
year ended January 31, 1993 and incorporated herein by this
reference).
4-f First Supplemental Senior Indenture, dated as of May 15, 1991,
to the Senior Indenture dated as of April 15, 1989, between
Morgan Stanley and The Chase Manhattan Bank (formerly known
as Chemical Bank), Trustee (previously filed as an exhibit
to Morgan Stanley's Annual Report on Form 10-K for the
fiscal year ended January 31, 1993 and incorporated herein
by this reference).
4-g Second Supplemental Senior Indenture, dated as of April 15, 1996,
to the Senior Indenture dated as of April 15, 1989 between
Morgan Stanley and The Chase Manhattan Bank (formerly known
as Chemical Bank), Trustee (previously filed as an exhibit
to Morgan Stanley's Current Report on Form 8-K dated May 6,
1996 and incorporated herein by this reference).
4-h Third Supplemental Senior Indenture, dated as of June 1, 1997,
to the Senior Indenture dated as of April 15, 1989 between
the Company and The Chase Manhattan Bank, Trustee
(previously filed as an exhibit to the Company's
Registration Statement on Form S-3, Registration No. 333-
27919, and incorporated herein by reference).
4-i Form of Fourth Supplemental Senior Indenture, dated as of
March 1, 1998, to the Senior Indenture dated as of April
15, 1989 between the Company and The Chase Manhattan Bank,
Trustee.
4-j Subordinated Indenture dated as of April 15, 1989 between Morgan
Stanley and The First National Bank of Chicago, Trustee
(previously filed as an exhibit to Morgan Stanley's Annual
Report on Form 10-K for the fiscal year ended January 31,
1993 and incorporated herein by this reference).
4-k First Supplemental Subordinated Indenture, dated as of May 15,
1991, to the Subordinated Indenture dated as of April 15,
1989 between Morgan Stanley and The First National Bank of
Chicago, Trustee (previously filed as an exhibit to Morgan
Stanley's Annual Report on Form 10-K for the fiscal year
ended January 31, 1993 and incorporated herein by this
reference).
4-l Second Supplemental Subordinated Indenture, dated as of April 15,
1996, to the Subordinated Indenture dated as of April 15,
1989 between Morgan Stanley and The First National Bank of
Chicago, Trustee (previously filed as an exhibit to Morgan
Stanley's Current Report on Form 8-K dated May 6, 1996 and
incorporated herein by this reference).
4-m Third Supplemental Subordinated Indenture, dated as of June 1,
1997, to the Subordinated Indenture dated as of April 15,
1989 between the Company and The First National Bank of
Chicago, Trustee (previously filed as an exhibit to the
Company's Registration Statement on Form S-3, Registration
No. 333-27919, and incorporated herein by reference).
4-n Form of Fourth Supplemental Subordinated Indenture, dated as of
March 1, 1998, to the Subordinated Indenture dated as of
April 15, 1989 between the Company and The First National
Bank of Chicago, Trustee.
4-o Form of Floating Rate Senior Note (previously filed as an
exhibit to the Company's Registration Statement on Form
S-3, Registration No. 333-27919, and incorporated herein by
reference).
4-p Form of Fixed Rate Senior Note (previously filed as an exhibit
to the Company's Registration Statement on Form S-3,
Registration No. 333-27919, and incorporated herein by
reference).
4-q Form of Senior Variable Rate Renewable Note (previously filed
as an exhibit to the Company's Registration Statement on
Form S-3, Registration No. 333-27919, and incorporated
herein by reference).
4-r Form of Floating Rate Subordinated Note (previously filed as an
exhibit to the Company's Registration Statement on Form
S-3, Registration No. 333-27919, and incorporated herein by
reference).
4-s Form of Fixed Rate Subordinated Note (previously filed as an
exhibit to the Company's Registration Statement on Form
S-3, Registration No. 333-27919, and incorporated herein by
reference).
4-t Form of Subordinated Variable Rate Renewable Note (previously
filed as an exhibit to the Company's Registration Statement
on Form S-3, Registration No. 333-27919, and incorporated
herein by reference).
4-u Form of Temporary Global Floating Rate Senior Bearer Note
(previously filed as an exhibit to the Company's
Registration Statement on Form S-3, Registration No. 333-
27919, and incorporated herein by reference).
4-v Form of Temporary Global Fixed Rate Senior Bearer Note
(previously filed as an exhibit to the Company's
Registration Statement on Form S-3, Registration No. 333-
27919, and incorporated herein by reference).
4-w Form of Permanent Global Floating Rate Senior Bearer Note
(previously filed as an exhibit to the Company's
Registration Statement on Form S-3, Registration No. 333-
27919, and incorporated herein by reference).
4-x Form of Permanent Global Fixed Rate Senior Bearer Note
(previously filed as an exhibit to the Company's
Registration Statement on Form S-3, Registration No. 333-
27919, and incorporated herein by reference).
4-y Form of Euro Fixed Rate Senior Bearer Note (previously filed as
an exhibit to the Company's Registration Statement on Form
S-3, Registration No. 333-27919, and incorporated herein by
reference).
4-z Form of Euro Fixed Rate Senior Registered Note (previously
filed as an exhibit to the Company's Registration Statement
on Form S-3, Registration No. 333-27919, and incorporated
herein by reference).
4-aa Form of Floating/Fixed Rate Senior Note (previously filed as an
exhibit to the Company's Registration Statement on Form S-3,
Registration No. 333-27919, and incorporated herein by
reference).
4-bb Form of Senior Dollarized Bull Note (previously filed as an
exhibit to the Company's Registration Statement on Form S-3,
Registration No. 333-27919, and incorporated herein by
reference).
4-cc Form of S&P Indexed (Bull) Note (previously filed as an exhibit
to the Company's Registration Statement on Form S-3,
Registration No. 333-27919, and incorporated herein by
reference).
4-dd Form of S&P Indexed (Bear) Note (previously filed as an exhibit
to the Company's Registration Statement on Form S-3,
Registration No. 333-27919, and incorporated herein by
reference).
4-ee Form of Euro Fixed Rate Subordinated Registered Note (previously
filed as an exhibit to the Company's Registration Statement
on Form S-3, Registration No. 333-27919, and incorporated
herein by reference).
4-ff Form of Principal Exchange Rate Linked Security (PERLS) Note
(previously filed as an exhibit to the Company's
Registration Statement on Form S-3, Registration No. 333-
27919, and incorporated herein by reference).
4-gg Form of Reverse PERLS Note (previously filed as an exhibit to
the Company's Registration Statement on Form S-3,
Registration No. 333-27919, and incorporated herein by
reference).
4-hh Form of Multicurrency PERLS Note (previously filed as an exhibit
to the Company's Registration Statement on Form S-3,
Registration No. 333-27919, and incorporated herein by
reference).
4-ii Form of Fixed Rate Amortizing Senior Note (previously filed as
an exhibit to the Company's Registration Statement on Form
S-3, Registration No. 333-27919, and incorporated herein by
reference).
4-jj Form of Senior Dollarized Yield Curve Note (Bond Basis)
(previously filed as an exhibit to the Company's
Registration Statement on Form S-3, Registration No. 333-
27919, and incorporated herein by reference).
4-kk Form of Senior Dollarized Yield Curve Note (Money Market Basis)
(previously filed as an exhibit to the Company's
Registration Statement on Form S-3, Registration No. 333-
27919, and incorporated herein by reference).
4-ll Form of Permanent Global Senior Bull Note (previously filed as
an exhibit to the Company's Registration Statement on Form
S-3, Registration No. 333-27919, and incorporated herein by
reference).
4-mm Form of Definitive Floating Rate Senior Bearer Note (previously
filed as an exhibit to the Company's Registration Statement
on Form S-3, Registration No. 333-27919, and incorporated
herein by reference).
4-nn Form of Temporary Global Senior ECU Puttable Floating Rate Note
(previously filed as an exhibit to the Company's
Registration Statement on Form S-3, Registration No. 333-
27919, and incorporated herein by reference).
4-oo Form of Permanent Global Senior ECU Puttable Floating Rate Note
(previously filed as an exhibit to the Company's
Registration Statement on Form S-3, Registration No. 333-
27919, and incorporated herein by reference).
4-pp Form of Debt Warrant Agreement for Warrants Sold Attached to
Debt Securities (previously filed as an exhibit to the
Company's Registration Statement on Form S-3, Registration
No. 333-27919, and incorporated herein by reference).
4-qq Form of Debt Warrant Agreement for Warrants Sold Alone
(previously filed as an exhibit to the Company's
Registration Statement on Form S-3, Registration No. 333-
27919, and incorporated herein by reference).
4-rr Form of Warrant Agreement for Universal Warrants (previously
filed as an exhibit to the Company's Registration Statement
on Form S-3, Registration No. 333-27919, and incorporated
herein by reference).
4-ss Form of Unit Agreement (previously filed as an exhibit to the
Company's Registration Statement on Form S-3, Registration
No. 333-27919, and incorporated herein by reference).
4-tt Form of Put Warrant (included in exhibit 4-rr) (previously filed
as an exhibit to the Company's Registration Statement on
Form S-3, Registration No. 333-27919, and incorporated
herein by reference).
4-uu Form of Call Warrant (included in exhibit 4-rr) (previously
filed as an exhibit to the Company's Registration Statement
on Form S-3, Registration No. 333-27919, and incorporated
herein by reference).
4-vv Form of Purchase Contract (Issuer Sale) (included in exhibit
4-ss) (previously filed as an exhibit to the Company's
Registration Statement on Form S-3, Registration No. 333-
27919, and incorporated herein by reference).
4-ww Form of Purchase Contract (Issuer Purchase) (included in exhibit
4-ss) (previously filed as an exhibit to the Company's
Registration Statement on Form S-3, Registration No. 333-
27919, and incorporated herein by reference).
4-xx Form of Unit Certificate (included in exhibit 4-ss) (previously
filed as an exhibit to the Company's Registration Statement
on Form S-3, Registration No. 333-27919, and incorporated
herein by reference).
4-yy Form of Pre-Paid Purchase Contract.
4-zz Form of Unit Agreement For Units Without Holder Obligations.
5 Opinion of Brown & Wood LLP.
12-a * Computation of Consolidated Ratio of Earnings to Fixed Charges.
12-b * Computation of Consolidated Ratio of Earnings to Fixed Charges
and Preferred Stock Dividends.
23-a Consent of Deloitte & Touche LLP.
23-b Consent of Ernst & Young LLP.
23-c Consent of Brown & Wood LLP (included in exhibit 5).
24 Powers of Attorney (included on the signature pages).
25-a * Statement of Eligibility of The Chase Manhattan Bank, Trustee
under the Senior Debt Indenture.
25-b * Statement of Eligibility of The First National Bank of Chicago,
Trustee under the Subordinated Debt Indenture.
- ------------
* Previously filed.
Item 17. Undertakings
(1) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933, each
filing of the registrant's annual report pursuant to section 13(a) or section
15(d) of the Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to section 15(d)
of the Securities Exchange Act of 1934) that is incorporated by reference in
this registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(2) Insofar as indemnification for liabilities arising under
the Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing provisions, or
otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by a registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the registrant
will, unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
(3) The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or
sales are being made, a post-effective amendment to this
registration statement:
(i) To include any prospectus required by
section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of this
registration statement (or the most recent post-
effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in
the information set forth in this registration
statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered
(if the total dollar value of securities offered
would not exceed that which was registered) and any
deviation from the low or high end of the estimated
maximum offering range may be reflected in the form
of prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than a 20% change
in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the
effective registration statement; and
(iii) To include any material information with
respect to the plan of distribution not previously
disclosed in this registration statement or any
material change to such information in this
registration statement;
provided, however, that paragraphs (3)(a)(i) and
(3)(a)(ii) do not apply if the information required to
be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the
registrant pursuant to section 13 or section 15(d) of
the Securities Exchange Act of 1934 that are
incorporated by reference in this registration
statement.
(b) That, for the purpose of determining any
liability under the Securities Act of 1933, each such
post-effective amendment shall be deemed to be a new
registration statement relating to the securities
offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide
offering thereof.
(c) To remove from registration by means of a post-
effective amendment any of the securities being
registered which remain unsold at the termination of the
offering.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant certifies that it has reasonable grounds to believe that
it meets all the requirements for filing on Form S-3 and has duly caused this
amendment to the Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in The City of New York and State of New
York, on the 9th day of March, 1998.
MORGAN STANLEY, DEAN WITTER,
DISCOVER & CO.
(Registrant)
By: /s/ Ronald T. Carman
------------------------------
Name: Ronald T. Carman
Title: Assistant Secretary
- ------------------------------------------------------------------------------
Pursuant to the requirement of the Securities Act of 1933, as
amended, this amendment to the Registration Statement has been signed below by
the following persons in the capacities indicated on the 9th day of March,
1998.
Signature Title
--------- -----
*
- ----------------------- Chairman of the Board, Chief Executive Officer
Philip J. Purcell and Director
*
- ----------------------- President, Chief Operating Officer and Director
John J. Mack
*
- ----------------------- Executive Vice President, Chief Strategic and
Thomas C. Schneider Administrative Officer and Director
*
- ----------------------- Chairman of Executive Committee of Board of Directors
Richard B. Fisher and Director
*
- ----------------------- Executive Vice President and Chief
Robert G. Scott Financial Officer
*
- ----------------------- Controller
Eileen K. Murray (Principal Accounting Officer)
*
- ----------------------- Director
Robert P. Bauman
*
- ----------------------- Director
Edward A. Brennan
*
- ----------------------- Director
Diana D. Brooks
*
- ----------------------- Director
Daniel B. Burke
*
- ----------------------- Director
C. Robert Kidder
*
- ----------------------- Director
Miles L. Marsh
*
- ----------------------- Director
Michael A. Miles
*
- ----------------------- Director
Allen E. Murray
*
- ----------------------- Director
Clarence B. Rogers, Jr.
*
- ----------------------- Director
Laura D'Andrea Tyson
*By: /s/ Ronald T. Carman
------------------------------
Name: Ronald T. Carman
Attorney-in-fact
EXHIBIT INDEX
Exhibit
Number Description
- ------- -----------
4-i Form of Fourth Supplemental Senior Indenture, dated as of March 1,
1998, to the Senior Indenture dated as of April 15, 1989
between the Company and The Chase Manhattan Bank, Trustee.
4-n Form of Fourth Supplemental Subordinated Indenture, dated as of
March 1, 1998, to the Subordinated Indenture dated as of April
15, 1989 between the Company and The First National Bank of
Chicago, Trustee.
4-yy Form of Pre-Paid Purchase Contract.
4-zz Form of Unit Agreement For Units Without Holder Obligations.
5 Opinion of Brown & Wood LLP.
12-a * Computation of Consolidated Ratio of Earnings to Fixed Charges.
12-b * Computation of Consolidated Ratio of Earnings to Fixed Charges and
Preferred Stock Dividends.
23-a Consent of Deloitte & Touche LLP.
23-b Consent of Ernst & Young LLP.
23-c Consent of Brown & Wood LLP (included in Exhibit 5).
25-a * Statement of Eligibility of The Chase Manhattan Bank, Trustee under
the Senior Debt Indenture.
25-b * Statement of Eligibility of The First National Bank of Chicago,
Trustee under the Subordinated Debt Indenture.
- ----------
* Previously filed.
Exhibit 4-yy
FORM OF PRE-PAID PURCHASE CONTRACT
REGISTERED REGISTERED
No. [ ] _________ Purchase Contracts
(each Purchase Contract
having an issue price of
$_________).
CUSIP:
Unless this certificate is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York, New
York) to the issuer or its agent for registration of transfer, exchange or
payment, and any certificate issued is registered in the name of Cede & Co.
or such other name as requested by an authorized representative of The
Depository Trust Company and any payment is made to Cede & Co., ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL since the registered owner hereof, Cede & Co., has an interest herein.
[Unless and until it is exchanged in whole or in part for
Purchase Contracts in definitive registered form, this Purchase Contract may
not be transferred except as a whole by the Depositary to the nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary.](1)
- ------------
(1) Applies to global purchase contracts
MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
GLOBAL PRE-PAID PURCHASE CONTRACT SETTLING ________________
This Pre-paid Purchase Contract is one of the Pre-Paid Purchase
Contracts Settling ____________ (the "Purchase Contracts"), initially issued
as part of a [Separable] Unit Mandatorily Exchangeable for ______________ (a
"Unit") consisting of [(i) one Purchase Contract and (ii) one ________ Warrant
Settling ______________ (a "_______ Warrant"). The Units are governed by a
Unit Agreement dated as of ____________ between the Issuer and The Chase
Manhattan Bank as Unit Agent under the Unit Agreement, Trustee and Paying
Agent under the Senior Indenture and Warrant Agent (the "Warrant Agent") under
the Warrant Agreement dated __________. [Prior to ___________ (the
"[Automatic] Separation Date"), the Purchase Contracts and the _______
Warrants may be purchased and transferred only as Units. On the Automatic
Separation Date, the Units will automatically separate into their constituent
Purchase Contracts and Put Warrants (which will thereafter trade under
separate CUSIP numbers), and the Units will cease to exist.] Any holder of a
Purchase Contract by his acceptance thereof agrees to (in the absence of any
applicable administrative ruling or judicial determination to the contrary)
treat the Purchase Contracts and Warrants initially comprising Units as
separate securities and to file all United States federal, state and local tax
returns consistent with the treatment of such Units as constituted by separate
securities.
Purchase Contract Property...........
Amount of Purchase Contract Property
Deliverable Per Purchase Contract....
Settlement...........................
Contract Settlement Date.............
[Determination Dates]................
Calculation Agent.................... Morgan Stanley & Co. Incorporated.
Other Provisions.....................
Morgan Stanley, Dean Witter, Discover & Co., a Delaware
corporation (together with its successors and assigns, the "Issuer"), for
value received, hereby promises to pay to CEDE & CO., or registered assignees,
the amount of Purchase Contract Property, as determined in accordance with the
provisions set forth under "Settlement" above, due with respect to _________
PURCHASE CONTRACTS on the Contract Settlement Date (including as a result of
acceleration or otherwise) specified above.
Reference is hereby made to the further provisions of this
Purchase Contract set forth on the reverse hereof, which further provisions
shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual signature,
this Purchase Contract shall not be entitled to any benefit under the Senior
Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this Purchase
Contract to be duly executed.
DATED: [ ] MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
By:
----------------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the securities referred
to in the within-mentioned
Senior Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By:
----------------------------------------
Authorized Officer
FORM OF REVERSE OF SECURITY
This Pre-paid Purchase Contract is one of a duly authorized
issue of Prepaid Purchase Contracts known as the Pre-paid Purchase Contracts
Settling _____________ (the "Purchase Contracts") of the Issuer. The Purchase
Contracts are issuable under a Senior Indenture, dated as of April 15, 1989,
as supplemented by a First Supplemental Senior Indenture dated as of May 15,
1991 and a Second Supplemental Senior Indenture dated as of April 15, 1996
between Morgan Stanley Group Inc. (as predecessor of the Issuer) and The
Chase Manhattan Bank (formerly known as Chemical Bank), as Trustee (the
"Trustee," which term includes any successor trustee under the Senior
Indenture) as further supplemented by a Third Supplemental Senior Indenture
dated as of June 1, 1997 and a Fourth Supplemental Senior Indenture dated as
of March 1, 1998, each between the Issuer and the Trustee (as so supplemented
and as further supplemented from time to time, the "Senior Indenture"), to
which Senior Indenture and all indentures supplemental thereto reference is
hereby made for a statement of the respective rights, limitations of rights,
duties and immunities of the Issuer, the Trustee and holders of the Purchase
Contracts and the terms upon which the Purchase Contracts are, and are to be,
authenticated and delivered. The Issuer has appointed The Chase Manhattan
Bank (formerly known as Chemical Bank) at its corporate trust office in The
City of New York as the paying agent (the "Paying Agent," which term includes
any additional or successor Paying Agent appointed by the Issuer) with respect
to the Purchase Contracts. The terms of individual Purchase Contracts may
vary, all as provided in the Senior Indenture. To the extent not inconsistent
herewith, the terms of the Senior Indenture are hereby incorporated by
reference herein.
[This Purchase Contract and all the obligations of the Issuer
hereunder are direct, unsecured obligations of the Issuer and rank without
preference or priority among themselves and pari passu with all other existing
and future unsecured and unsubordinated indebtedness of the Issuer, subject
to certain statutory exceptions in the event of liquidation upon insolvency.
[This Purchase Contract is not redeemable prior to maturity.]
This Purchase Contract, and any Purchase Contract or Purchase
Contracts issued upon transfer or exchange hereof, is issuable only in fully
registered form in minimum denominations of ______ Purchase Contracts and any
integral multiple of ______ Purchase Contracts in excess thereof.
The Trustee has been appointed registrar for the Purchase
Contracts, and the Trustee shall maintain at its office in The City of New
York a register for the registration and transfer of Purchase Contracts. This
Purchase Contract may be transferred at the aforesaid office of the Trustee by
surrendering this Purchase Contract for cancellation, accompanied by a written
instrument of transfer in form satisfactory to the Trustee and duly executed
by the registered holder hereof in person or by the holder's attorney duly
authorized in writing, and thereupon the Trustee shall issue in the name of
the transferee or transferees, in exchange herefor, a new Purchase Contract or
Purchase Contracts having identical terms and provisions and having a like
number of Purchase Contracts in authorized denominations, subject to the terms
and conditions set forth herein. Purchase Contracts are exchangeable at said
office for other Purchase Contracts of other authorized denominations and
having identical terms and provisions. All such exchanges and transfers of
Purchase Contracts shall be free of charge, but the Issuer may require payment
of a sum sufficient to cover any tax or other governmental charge in
connection therewith. All Purchase Contracts surrendered for exchange shall
be accompanied by a written instrument of transfer in form satisfactory to the
Trustee and executed by the registered holder in person or by the holder's
attorney duly authorized in writing.
In case any Purchase Contract shall at any time become
mutilated, defaced or be destroyed, lost or stolen and such Purchase Contract
or evidence of the loss, theft or destruction thereof (together with the
indemnity hereinafter referred to and such other documents or proof as may be
required in the premises) shall be delivered to the Trustee, a new Purchase
Contract of like tenor shall be issued by the Issuer in exchange for the
Purchase Contract so mutilated or defaced, or in lieu of the Purchase Contract
so destroyed or lost or stolen, but, in the case of any destroyed or lost or
stolen Purchase Contract, only upon receipt of evidence satisfactory to the
Trustee and the Issuer that such Purchase Contract was destroyed or lost or
stolen and, if required, upon receipt also of indemnity satisfactory to each
of them. All expenses and reasonable charges associated with procuring such
indemnity and with the preparation, authentication and delivery of a new
Purchase Contract shall be borne by the owner of the Purchase Contract
mutilated, defaced, destroyed, lost or stolen.
The Senior Indenture provides that, (a) if an Event of Default
(as defined in the Senior Indenture) due to the default in payment of
principal of, premium, if any, or interest on, any series of debt securities
issued under the Senior Indenture, including a default in payment of the
Purchase Contract Property (as defined on the face of this instrument) or any
other amount due with respect to the series of Prepaid Purchase Contracts of
which this Purchase Contract forms a part, or due to the default in the
performance or breach of any other covenant or warranty of the Issuer
applicable to the debt securities of such series but not applicable to all
outstanding debt securities issued under the Senior Indenture shall have
occurred and be continuing, either the Trustee or the holders of not less than
25% in principal amount of the debt securities of each affected series (voting
as a single class) may then declare the principal of all debt securities of
all such series and interest accrued thereon to be due and payable immediately
and (b) if an Event of Default due to a default in the performance of any
other of the covenants or agreements in the Senior Indenture applicable to all
outstanding debt securities issued thereunder, including this Purchase
Contract, or due to certain events of bankruptcy, insolvency and
reorganization of the Issuer, shall have occurred and be continuing, either
the Trustee or the holders of not less than 25% in principal amount of all debt
securities issued under the Senior Indenture then outstanding (treated as one
class) may declare the principal of all such debt securities and interest
accrued thereon to be due and payable immediately, but upon certain conditions
such declarations may be annulled and past defaults may be waived (except a
continuing default in payment of principal (or premium, if any) or interest on
such debt securities) by the holders of a majority in principal amount of the
debt securities of all affected series then outstanding.
The Senior Indenture permits the Issuer and the Trustee, with
the consent of the holders of not less than a majority in aggregate principal
amount of the debt securities of all series issued under the Senior Indenture
then outstanding and affected (voting as one class), to execute supplemental
indentures adding any provisions to or changing in any manner the rights of
the holders of each series so affected; provided that the Issuer and the
Trustee may not, without the consent of the holder of each outstanding debt
security affected thereby, (a) extend the final maturity of any such debt
security, or reduce the principal amount thereof, or reduce the rate or extend
the time of payment of interest thereon, or reduce any amount payable on
redemption or repayment thereof, or change the currency of payment thereof, or
impair or affect the rights of any holder to institute suit for the payment
thereof without the consent of the holder of each debt security so affected or
(b) reduce the aforesaid percentage in principal amount of debt securities the
consent of the holders of which is required for any such supplemental
indenture.
So long as this Purchase Contract shall be outstanding, the
Issuer shall cause to be maintained an office or agency for the payment of the
Purchase Contract Property or any other amount due with respect to this
Purchase Contract as herein provided in the Borough of Manhattan, The City of
New York, and an office or agency in said Borough of Manhattan for the
registration, transfer and exchange as aforesaid of the Purchase Contracts.
The Issuer may designate other agencies for the payment of said principal,
premium and interest at such place or places (subject to applicable laws and
regulations) as the Issuer may decide. So long as there shall be such an
agency, the Issuer shall keep the Trustee advised of the names and locations
of such agencies, if any are so designated.
With respect to Purchase Contract Property paid by the Issuer
and held by the Trustee or any Paying Agent for payment of any Purchase
Contract that remains unclaimed at the end of two years after such Purchase
Contract shall have become due and payable (whether on the Contract Settlement
Date (as defined on the face of this instrument) or as a result of
acceleration or otherwise), (i) the Trustee or such Paying Agent shall notify
the holders of such Purchase Contracts that such Purchase Contract Property
shall be repaid to the Issuer and any person claiming such Purchase Contract
Property shall thereafter look only to the Issuer for payment thereof and (ii)
such Purchase Contract Property shall be so repaid to the Issuer. Upon such
repayment all liability of the Trustee or such Paying Agent with respect to
such Purchase Contract Property shall thereupon cease.
No provision of this Purchase Contract or of the Senior
Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the Purchase Contract Property on this
Purchase Contract at the time, place, and rate, and in the coin or currency,
herein prescribed unless otherwise agreed between the Issuer and the
registered holder of this Purchase Contract.
Prior to due presentment of this Purchase Contract for
registration of transfer, the Issuer, the Trustee and any agent of the Issuer
or the Trustee may treat the holder in whose name this Purchase Contract is
registered as the owner hereof for all purposes, whether or not this Purchase
Contract be overdue, and none of the Issuer, the Trustee or any such agent
shall be affected by notice to the contrary.
No recourse shall be had for the payment of the Purchase
Contract Property on this Purchase Contract, for any claim based hereon, or
otherwise in respect hereof, or based on or in respect of the Senior Indenture
or any indenture supplemental thereto, against any incorporator, shareholder,
officer or director, as such, past, present or future, of the Issuer or of any
successor corporation, either directly or through the Issuer or any successor
corporation, whether by virtue of any constitution, statute or rule of law or
by the enforcement of any assessment or penalty or otherwise, all such
liability being, by the acceptance hereof and as part of the consideration for
the issue hereof, expressly waived and released.
This Purchase Contract shall for all purposes be governed by,
and construed in accordance with, the laws of the State of New York.
All terms used in this Purchase Contract which are defined in
the Senior Indenture and not otherwise defined herein shall have the meanings
assigned to them in the Senior Indenture.
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this instrument, shall be construed as though they were written
out in full according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as
tenants in common
UNIF GIFT MIN ACT - Custodian
---------------- ----------------
(Minor) (Cust)
Under Uniform Gifts to Minors Act
----------------------------
(State)
Additional abbreviations may also be used though not in the
above list.
------------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
- ---------------------------------------
[PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE]
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
[PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE]
the within Purchase Contract and all rights thereunder, hereby irrevocably
constituting and appointing such person attorney to transfer such purchase
contract on the books of the Issuer, with full power of substitution in the
premises.
Dated:
----------------
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within Purchase Contract in every
particular without alteration or enlargement or any change
whatsoever.
Exhibit 4-zz
- ------------------------------------------------------------------------------
MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
AND
THE CHASE MANHATTAN BANK,
as Unit Agent, as Trustee and Paying
Agent under the Indenture referred to
herein, and as Warrant Agent under the
Warrant Agreement referred to herein
------------
FORM OF UNIT AGREEMENT
(For Units Without Holder Obligations)
------------
Dated as of __________
- ------------------------------------------------------------------------------
TABLE OF CONTENTS
Page
----
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.1. Definitions.................................................. 2
ARTICLE 2
UNITS
Section 2.1. Forms Generally............................................. 6
Section 2.2. Form of Certificate of Authentication and
Countersignature............................................ 6
Section 2.3. Units....................................................... 7
Section 2.4. Denominations............................................... 7
Section 2.5. Rights and Obligations Evidenced by the Units................ 7
Section 2.6. Execution, Authentication, Delivery and Dating.............. 7
Section 2.7. Registration of Transfer and Exchange....................... 8
Section 2.8. Mutilated, Destroyed, Lost and Stolen Unit Certificates..... 9
Section 2.9. Persons Deemed Owners....................................... 10
Section 2.10. Cancellation................................................ 10
Section 2.11. Exchange of Global Units and Definitive Units............... 11
ARTICLE 3
AUTOMATIC SEPARATION OF UNITS; TERMINATION OF UNIT AGREEMENT
Section 3.1. Automatic Separation of Units; Termination of Unit
Agreement................................................... 11
Section 3.2. Effect of Termination....................................... 11
ARTICLE 4
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF UNITS
Section 4.1. Holder May Enforce Rights................................... 12
ARTICLE 5
THE AGENT
Section 5.1. Certain Duties and Responsibilities......................... 12
Section 5.2. Certain Rights of Agent..................................... 13
Section 5.3. Not Responsible for Recitals or Issuance of Units........... 14
Section 5.4. May Hold Units.............................................. 14
Section 5.5. Compensation and Reimbursement.............................. 14
Section 5.6. Corporate Agent Required; Eligibility....................... 15
Section 5.7. Resignation and Removal; Appointment of Successor........... 16
Section 5.8. Acceptance of Appointment by Successor...................... 17
Section 5.9. Merger, Conversion, Consolidation or Succession to Business. 18
Section 5.10. Tax Compliance.............................................. 18
ARTICLE 6
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Section 6.1. Covenant Not to Merge, Consolidate, Sell or Convey
Property Except Under Certain Conditions.................... 18
Section 6.2. Rights and Duties of Successor Corporation.................. 19
Section 6.3. Opinion of Counsel to Agent................................. 19
ARTICLE 7
MISCELLANEOUS PROVISIONS
Section 7.1. Amendments.................................................. 19
Section 7.2. Incorporators, Stockholders, Officers and Directors of the
Corporation Immune from Liability........................... 21
Section 7.3. Compliance Certificates and Opinions........................ 21
Section 7.4. Form of Documents Delivered to Agent........................ 22
Section 7.5. Maintenance of Office or Agency............................. 22
Section 7.6. Notices, Etc................................................ 23
Section 7.7. Notices to Holders; Waiver.................................. 23
Section 7.8. Effect of Headings and Table of Contents.................... 24
Section 7.9. Successors and Assigns...................................... 24
Section 7.10. Separability Clause......................................... 24
Section 7.11. Benefits of Agreement....................................... 24
Section 7.12. Governing Law............................................... 24
Section 7.13. Counterparts................................................ 24
Section 7.14. Inspection of Agreement..................................... 24
UNIT AGREEMENT, dated as of _____________, by and among MORGAN
STANLEY, DEAN WITTER, DISCOVER & CO., a Delaware corporation (the
"Corporation") and THE CHASE MANHATTAN BANK, a New York banking corporation
("Chase"), acting solely as unit agent under this Agreement (in its capacity
as unit agent, the "Agent", except to the extent that this Agreement
specifically states that the Agent is acting in another capacity), Chase, as
trustee and paying agent under the Indenture described below (in its capacity
as trustee under the Indenture, the "Trustee" and, in its capacity as paying
agent under the Indenture, the "Paying Agent"), and Chase, as Warrant Agent
under the Warrant Agreement described below (in its capacity as Warrant Agent
under the Warrant Agreement, the "Warrant Agent").
WHEREAS, Morgan Stanley Group Inc. (as predecessor of the
Corporation) has entered into a Senior Indenture dated as of April 15, 1989, as
supplemented by a First Supplemental Senior Indenture dated as of May 15, 1991
and a Second Supplemental Senior Indenture dated as of April 15, 1996 between
Morgan Stanley Group Inc. and The Chase Manhattan Bank (formerly known as
Chemical Bank), as Trustee as further supplemented by a Third Supplemental
Senior Indenture dated as of June 1, 1997 and a Fourth Supplemental Senior
Indenture dated as of March 1, 1998 between the Corporation and the Trustee
(as so supplemented, the "Indenture");
WHEREAS, the Corporation has entered into a Warrant Agreement
(the "Warrant Agreement") dated as of ____________ between the Corporation and
Chase, as Warrant Agent;
WHEREAS, the Corporation has duly authorized the issuance,
pursuant to the Warrant Agreement, of _________ Warrants [Settling/Expiring]
________ (the "Warrants");
WHEREAS, the Corporation has duly authorized the issuance
pursuant to the Indenture, of [Pre-paid Purchase Contracts Settling
__________] that require holders to satisfy their obligations thereunder upon
issuance of such Pre-paid Purchase Contracts (the "Purchase Contracts")[Notes
due _______(the "Notes")] and
WHEREAS, the Corporation desires to provide for the issuance of
the [Separable] Units [Mandatorily] Exchangeable for ________________________
consisting of ___________________ (the "Units");
NOW, THEREFORE, in consideration of the premises and the
purchases of the Units by the holders thereof, the Corporation, the Agent, the
Warrant Agent and the Trustee and Paying Agent mutually covenant and agree as
follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.1. Definitions. For all purposes of this Agreement,
except as otherwise expressly provided or unless the context otherwise
requires:
(i) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well
as the singular;
(ii) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with generally
accepted accounting principles in the United States in effect at
the time of any computation; and
(iii) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Agreement as a whole and
not to any particular Article, Section or other subdivision.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes of this
definition, "control", with respect to any specified Person, means the power
to direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agent" means the Person named as the "Agent" in the first
paragraph of this Agreement until a successor Agent shall have become such
pursuant to the applicable provisions of this Agreement, and thereafter
"Agent" shall mean such successor Person.
"Agreement" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more agreements
supplemental hereto entered into pursuant to the applicable provisions hereof.
["Automatic Separation Date" means _________________________.]
"Board of Directors", means the board of directors of the
Corporation or any other committee duly authorized to act on its behalf with
respect to this Agreement.
"Board Resolution", means one or more resolutions, certified by
the Secretary or an Assistant Secretary of the Corporation to have been duly
adopted or consented to by the Board of Directors and to be in full force and
effect on the date of such certification and delivered to the Agent.
"Corporate Trust Office" means the office of the Agent at which
at any particular time its corporate trust business shall be principally
administered, which office at the date hereof is located at 450 West 33rd
Street, 15th Floor, New York, New York 10001.
"Corporation" means the Person named as the "Corporation" in the
first paragraph of this Agreement until a successor Person shall have become
such pursuant to the applicable provisions of this Agreement, and thereafter
the "Corporation" shall mean such successor Person.
"Definitive Securities" means any Security in definitive form.
"Definitive Unit" means any Unit comprised of Definitive
Securities.
"Depositary" means DTC, or any successor as the Holder of any
Global Units.
"DTC" means The Depository Trust Company or its nominee.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Global Note" means a global Note in registered form originally
issued as part of a Global Unit.
"Global Purchase Contract" means a global Purchase Contract in
registered form originally issued as part of a Global Unit.
"Global Securities" means the [Global Warrant and the Global
Purchase Contract] [Global Note].
"Global Unit" means any Unit that comprises the Global
Securities and is represented by a Global Unit Certificate.
"Global Unit Certificate" means a global Unit Certificate in
registered form.
"Global Warrant" means a global Warrant in registered form
originally issued as part of a Global Unit.
"Holder" means in the case of any Security or Unit, the Person
in whose name such Security or the Securities constituting a part of such Unit
are registered on the relevant Security Register.
"Indenture" has the meaning specified in the first recital in
this Agreement.
"Issuer Request", means a written order or request signed in
the name of the Corporation by the Chairman of the Board, the President, the
Chief Financial Officer, the Chief Strategic and Administrative Officer, the
Chief Legal Officer, the Treasurer, any Assistant Treasurer or any other person
authorized by the Board of Directors and delivered to the Agent.
"Note" has the meaning stated in the fourth recital in this
Agreement.
"Note Register" has the meaning specified in Section 2.07.
"Officer's Certificate" means a certificate signed by the
Chairman of the Board, the President, the Chief Financial Officer, the Chief
Strategic and Administrative Officer, the Chief Legal Officer, the Treasurer,
any Assistant Treasurer of the Corporation or any other person authorized by
the Board of Directors and delivered to the Agent.
"Opinion of Counsel" means an opinion in writing signed by legal
counsel, who may be an employee of or counsel to the Corporation and who shall
otherwise be satisfactory to the Agent.
"Paying Agent" means any Person authorized by the Corporation to
pay the Put Price or any other sums payable by the Corporation; provided that
such Person shall be a bank or trust company organized and in good standing
under the laws of the United States or any state in the United States, having
(together with its parent) capital, surplus and undivided profits aggregating
at least $50,000,000 or any foreign branch or office of such a bank or trust
company, and, subject to the foregoing, may be an Affiliate of the Corporation.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"Purchase Contracts" has the meaning stated in the fourth
recital in this Agreement.
"Purchase Contract Register" has the meaning specified in
Section 2.7.
"Responsible Officer", with respect to the Agent means the
chairman or vice-chairman of the board of directors, the chairman or
vice-chairman of the executive committee of the board of directors, the
president, any vice president, the secretary, any assistant secretary, the
treasurer, any assistant treasurer, the cashier, any assistant cashier, any
senior trust officer, any trust officer or assistant trust officer, the
controller and any assistant controller or any other officer of the Agent
customarily performing functions similar to those performed by any of the
above-designated officers and also means, with respect to a particular
corporate trust or agency matter, any other officer to whom such matter is
referred because of his knowledge and familiarity with the particular subject.
"Security" means either a [list constituent securities].
"Security Register" means either a [Note Register, Purchase
Contract Register or Warrant Register].
"Trustee", with respect to [Purchase Contracts] [Notes], means
the Person acting as Trustee under the Indenture until a successor Trustee
shall have become such pursuant to the applicable provisions of such
Indenture, and thereafter "Trustee" shall mean such successor Trustee.
"Unit" has the meaning stated in the fifth recital to this
Agreement.
"Unit Certificate" means a certificate evidencing the rights and
obligations of the Corporation and a Holder with respect to the number of
Units specified on such certificate.
"Unit Register" has the meaning specified in Section 2.7.
"Warrant Agreement" has the meaning stated in the second
recital of this Agreement.
"Warrant Property" has the meaning specified in the Warrant
Agreement.
"Warrant Register" with respect to any Warrants constituting a
part of the Units means the security register of the Corporation maintained by
the Warrant Agent pursuant to the Warrant Agreement.
"Warrants" has the meaning stated in the third recital of this
Agreement.
ARTICLE 2
UNITS
Section 2.1. Forms Generally. (a) (i) The Units shall be
substantially in the form of Exhibit A. The Unit Certificates may have
imprinted or otherwise reproduced thereon such letters, numbers or other marks
of identification or designation and such legends or endorsements as the
officers of the Corporation executing the Securities constituting a part
thereof may approve (execution thereof to be conclusive evidence of such
approval) and that are not inconsistent with the provisions of this Agreement,
or as may be required to comply with any law or with any rule or regulation
made pursuant thereto, or with any rule or regulation of any self-regulatory
organization on which the Units may be listed or quoted or of any securities
depository or to conform to general usage.
(ii) The Unit Certificates shall be printed, lithographed or
engraved on steel engraved borders or may be produced in any other manner, all
as determined by the officers executing such Unit Certificates, as evidenced by
their execution of the Securities constituting a part of the Units evidenced by
such Unit Certificates.
(iii) The Units shall be issued initially as Global Units in fully
registered form. A beneficial interest in a Unit may not be exchanged for a
Definitive Unit, except as provided in Section 2.11. The Corporation shall
execute, and the Trustee and Warrant Agent shall, in accordance with Section
2.06, authenticate and countersign, respectively, and deliver one or more
global Unit Certificates (comprised of [list constituent Global Securities])
that (i) shall evidence all of the Units issued, shall be registered in the
name of the Depositary or its nominee, shall be delivered by the Agent to the
Depositary or pursuant to such Depositary's instructions and shall bear a
legend substantially to the following effect: "Unless and until it is
exchanged in whole or in part for Units in definitive registered form, this
Unit Certificate may not be transferred except as a whole by the Depositary to
the nominee of the Depositary or by a nominee of the Depositary to the
Depositary or another nominee of the Depositary or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary."
Section 2.2. Form of Certificate of Authentication and
Countersignature. The form of the Trustee's certificate of authentication of
the [Purchase Contracts] [Notes] and the form of the Warrant Agent's
countersignature of the Warrants, each constituting a part of the Units, shall
be substantially in such form as set forth in the Indenture or the Warrant
Agreement, as applicable.
Section 2.3. Units. (a) Each Unit will consist of
______________.
(b) The aggregate number of Units that may be authenticated,
countersigned and delivered under this Agreement is ___________________
(except for Units authenticated and delivered upon registration of transfer of,
or in exchange for, or in lieu of, other Units pursuant to Section 2.7, 2.8 or
2.11);
(c) The [list constituent securities] may be purchased,
transferred and exchanged only as Units [until the Automatic Separation Date.
On the Automatic Separation Date, the Units shall automatically separate into
their constituent [list constituent securities], and the Units will cease to
exist. Each beneficial owner of a Unit on the Automatic Separation Date shall
become the owner of [list amount of constituent securities], which may
thereafter be transferred as separate Securities.]
Section 2.4. Denominations. Units shall be issuable only in
registered form and in denominations of ___________ Units,[[Purchase
Contracts] [Notes] and Warrants], respectively, and any integral multiple
thereof.
Section 2.5. Rights and Obligations Evidenced by the Units.
Units shall evidence [(a) the number of Warrants specified on the face of the
Warrant Certificate attached to any Unit Certificate representing Definitive
Units or [on the face of] [Schedule A to] the Warrant Certificate representing
Global Warrants attached to the Unit Certificate representing Global Units and
(b) [the number of Purchase Contracts specified on the face of the Purchase
Contract attached to any Unit Certificate representing Definitive Units or [on
the face of ] [Schedule A to] the Global Purchase Contract attached to the Unit
Certificate representing Global Units] [the aggregate principal amount of Notes
specified on the face of the Note attached to any Unit Certificate representing
Definitive Units or on [the face of][Schedule A to] the Global Note attached to
the Unit Certificate representing Global Units].]
Section 2.6. Execution, Authentication, Delivery and Dating.
Upon the execution and delivery of this Agreement, and from time to time
thereafter, the Corporation may deliver, subject to the limitation on the
aggregate number of [list constituent securities] represented thereby set
forth in Section 2.03(b), Unit Certificates (including the Securities executed
by the Corporation constituting the Units evidenced by such Unit Certificates)
to the Trustee and Warrant Agent for authentication and countersignature, as
the case may be, of the Securities comprised by such Units, together with its
Issuer Requests for authentication and countersignature of such Securities,
and the Trustee in accordance with the Indenture and the Issuer Request of the
Corporation shall authenticate the [Purchase Contracts] [Notes] constituting a
part of the Units evidenced by such Unit Certificates and the Warrant Agent in
accordance with the Warrant Agreement shall countersign the Warrants
constituting a part of the Units evidenced by such Unit Certificates and each
shall deliver such Unit Certificates upon the order of the Corporation.
[Purchase Contracts] [Notes] constituting a part of the Units
shall be executed on behalf of the Corporation in accordance with the terms of
the Indenture. Warrants constituting a part of the Units shall be executed on
behalf of the Corporation in accordance with the terms of the Warrant
Agreement.
Section 2.7. Registration of Transfer and Exchange. A
register (the register being herein referred to as the ["Purchase Contract
Register"] ["Note Register"]) shall be maintained in accordance with the
Indenture to provide for the registration of [Purchase Contracts] [Notes]
constituting a part of the Units and of transfers of such [Purchase Contracts]
[Notes].
At the option of the Holder thereof, Units may be transferred or
exchanged for a Unit or Units having authorized denominations evidencing the
number of Units transferred or exchanged, upon surrender of such Units to be
so transferred or exchanged at the Corporate Trust Office of the Agent upon
payment, if the Corporation shall so require, of the charges hereinafter
provided. Whenever any Units are so surrendered for transfer or exchange, the
Corporation shall execute, and the Trustee and/or Warrant Agent, as
appropriate, shall authenticate and/or countersign, respectively, and the Agent
shall deliver the Units which the Holder making the transfer or exchange is
entitled to receive. All Units (including the Securities constituting part of
such Units) surrendered upon any exchange or transfer provided for in this
Agreement shall be promptly canceled and disposed of in accordance with
Section 2.10.
All Unit Certificates delivered upon any registration of
transfer or exchange of a Unit Certificate shall evidence the ownership of
[list number/amount listed on the face of constituent securities] and shall be
entitled to the same benefits, and be subject to the same obligations, under
the Indenture, the Warrant Agreement and this Agreement as the Units evidenced
by the Unit Certificate surrendered upon such registration of transfer or
exchange.
Every Unit Certificate presented or surrendered for
registration of transfer or for exchange shall (if so required by the
Corporation or the Agent) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Corporation and the Agent,
duly executed by the Holder thereof or his attorney duly authorized in
writing. Except as otherwise provided herein with respect to the Units, the
Agent shall register the transfer or exchange of any outstanding Unit
Certificate upon the records to be maintained by it for that purpose (the
"Unit Register") at its Corporate Trust Office.
No service charge shall be made for any transfer or exchange of
a Unit, but the Corporation and the Agent may require payment from the Holder
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of Units,
other than any exchanges pursuant to Section 2.8 not involving any transfer.
Section 2.8. Mutilated, Destroyed, Lost and Stolen Unit
Certificates. If any mutilated Unit Certificate is surrendered to the Agent,
the Corporation shall execute and deliver to the Trustee and the Warrant
Agent, as appropriate, and the Trustee and the Warrant Agent shall
authenticate, countersign and deliver, as appropriate, in exchange therefor
new Securities comprised by Units of like tenor and evidenced by a new Unit
Certificate evidencing the same number of Units and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Corporation and the Trustee
and the Warrant Agent and/or the Agent, as appropriate, (i) evidence to their
satisfaction of the destruction, loss or theft of any Unit Certificate and
(ii) such security or indemnity as may be required by them to hold each of
them and any agent of any of them harmless, then, in the absence of notice to
the Corporation and the Trustee and the Warrant Agent as appropriate, that such
Unit Certificate has been acquired by a bona fide purchaser, the Corporation
shall execute and deliver to the Trustee and the Warrant Agent and/or the
Agent, as appropriate, and the Trustee (in accordance with the provisions of
the Indenture) and the Warrant Agent (in accordance with the provisions of the
Warrant Agreement) shall authenticate and countersign and the Agent shall
deliver to the Holder, as appropriate, in lieu of any such destroyed, lost or
stolen Unit Certificate, new Securities comprised by Units of like tenor and
evidenced by a new Unit Certificate evidencing the same number of Units and
bearing a number not contemporaneously outstanding.
Upon the issuance of any new Unit Certificate under this
Section, the Corporation and the Agent may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto and any other expenses (including the fees and expenses of
the Agent) connected therewith.
Every new Unit Certificate executed pursuant to this Section in
lieu of any destroyed, lost or stolen Unit Certificate shall constitute an
original additional contractual obligation of the Corporation, whether or not
the destroyed, lost or stolen Unit Certificate (and the Securities evidenced
thereby) shall be at any time enforceable by anyone, and shall be entitled to
all the benefits of this Agreement equally and proportionately with any and
all other Unit Certificates delivered hereunder.
The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Unit
Certificates.
Section 2.9. Persons Deemed Owners. Prior to due presentment
of a Unit Certificate for registration of transfer, the Corporation, the
Trustee, the Warrant Agent and the Agent, as appropriate, and any agent of the
Corporation, the Trustee, the Warrant Agent or the Agent, as appropriate, may
treat the Person in whose name any Security evidenced by such Unit Certificate
is registered as the owner of the Units evidenced thereby for all purposes
whatsoever, whether or not payment with respect to any Security constituting a
part of the Units evidenced thereby shall be overdue and notwithstanding any
notice to the contrary. None of the Corporation, the Trustee, the Warrant
Agent, the Agent or any agent of the Corporation, the Trustee, the Warrant
Agent or the Agent shall be affected by notice to the contrary.
Section 2.10. Cancellation. All Unit Certificates surrendered
for registration of transfer or exchange shall, if surrendered to any Person
other than the Trustee, the Warrant Agent or the Agent, as appropriate, be
delivered to the Trustee, the Warrant Agent and/or the Agent, as appropriate,
and, if not already canceled, [list constituent securities] evidenced by such
Units shall be promptly canceled by the Trustee, the Warrant Agent and/or the
Agent, as appropriate. The Corporation may at any time deliver to the Trustee,
the Warrant Agent and/or the Agent, as appropriate, for cancellation any Unit
Certificates previously authenticated, countersigned and delivered hereunder,
under the Warrant Agreement and under the Indenture, which the Corporation may
have acquired in any manner whatsoever, and all Unit Certificates so delivered
shall, upon Issuer Request of the Corporation, be promptly canceled by the
Trustee, Warrant Agent and/or the Agent, as appropriate. No Unit Certificates
shall be authenticated, countersigned and executed in lieu of or in exchange
for any Unit Certificates canceled as provided in this Section, except as
permitted by this Agreement. All canceled Unit Certificates held by the Agent
shall be disposed of in accordance with its customary procedures and a
certificate of their disposition shall be delivered by the Agent to the
Corporation, unless by Issuer Request the Corporation shall direct that
canceled Unit Certificates be returned to it.
If the Corporation or any Affiliate of the Corporation shall
acquire any Unit Certificate, such acquisition shall not operate as a
cancellation of such Unit Certificate unless and until such Unit Certificate
is delivered to the Trustee, the Warrant Agent and/or the Agent, as
appropriate, for the purpose of cancellation.
Section 2.11. Exchange of Global Units and Definitive Units.
Holders of Global Units shall receive Definitive Units in exchange for
interests in such Global Units if DTC notifies the Corporation that it is
unwilling or unable to continue as Depositary with respect to the Global Units
or if at any time it ceases to be a clearing agency under the Exchange Act,
and a successor Depositary registered as a clearing agency under the Exchange
Act is not appointed by the Corporation within 90 days after receipt of such
notice or after it becomes aware that DTC has ceased to be such a clearing
agency.
Definitive Units exchanged for interests in Global Units
pursuant to this Section 2.11 shall be denominated in the amounts and
registered in the name of such Person or Persons as the Depositary shall
instruct the Agent, the Warrant Agent and the Trustee, as appropriate.
Whenever Global Units are exchanged for Definitive Units, the
Global Unit Certificate or Certificates shall be canceled and disposed of in
accordance with Section 2.10.
ARTICLE 3
[AUTOMATIC SEPARATION OF UNITS; TERMINATION OF UNIT AGREEMENT
Section 3.1. Automatic Separation of Units; Termination of Unit
Agreement. Prior to the Automatic Separation Date, the [list constituent
securities] shall be purchased and transferred only as Units. On the Automatic
Separation Date, the Units shall automatically separate into their constituent
[list constituent securities] and the Units will cease to exist. Each
beneficial owner of a Unit on the Automatic Separation Date shall become the
owner of [list number/amount of constituent securities], which may thereafter
be transferred as separate securities. Immediately upon the separation of the
Units into their constituent Securities, this Agreement shall terminate.
Section 3.2. Effect of Termination. If this Agreement is
terminated as provided in Section 3.01, such termination shall be without
liability of any party to any other party to this Agreement and the
obligations of the Corporation with respect to the Units shall automatically
cease upon the Automatic Separation Date and the Holders shall not have any
claims with respect to the Units; provided that the provisions of Section 5.5
shall survive the termination hereof pursuant to Section 3.1 and provided,
further, that the provisions of this Section shall not limit the ability of a
Holder to enforce its rights in accordance with the proviso in Section 4.1.]
ARTICLE 4
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF UNITS
Section 4.1. Holder May Enforce Rights. Any Holder of a
Unit may, without the consent of the Agent, the Depositary, any participant
of the Depositary or any other Holder, in and for its own behalf, enforce,
and may institute and maintain, any suit, action or proceeding against the
Corporation suitable to enforce, or otherwise in respect of, its rights
under this Agreement; provided that a Holder of a Unit may only enforce its
rights under the Securities comprised by such Unit in accordance with the
terms of the Indenture and the Warrant Agreement, as applicable.
ARTICLE 5
THE AGENT
Section 5.1. Certain Duties and Responsibilities. (a) The
Agent undertakes to perform such duties and only such duties as are
specifically set forth in this Agreement.
(b) No provision of this Agreement shall be construed to relieve
the Agent from liability for its own negligent action, its own negligent
failure to act, or its own wilful misconduct, except that
(i) the duties and obligations of the Agent with respect to
the Units shall be determined solely by the express provisions of
this Agreement and the Agent shall not be liable except for the
performance of such duties and obligations as are specifically
set forth in this Agreement, and no implied covenants or
obligations shall be read into this Agreement against the Agent;
and
(ii) in the absence of bad faith on its part, the Agent may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any
statements, certificates or opinions furnished to the Agent and
conforming to the requirements of this Agreement, but in the case
of any such statements, certificates or opinions that by any
provision hereof are specifically required to be furnished to the
Agent, the Agent shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this
Agreement.
(c) The Agent shall not be liable for any error of judgment
made in good faith by a Responsible Officer of the Agent, unless it shall
be proved that the Agent was negligent in ascertaining the pertinent facts.
(d) No provision of this Agreement shall require the Agent to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(e) Whether or not therein expressly so provided, every provision
of this Agreement relating to the conduct or affecting the liability of or
affording protection to the Agent shall be subject to the provisions of this
Section.
(f) The Agent is acting solely as agent for the Corporation
hereunder and owes no fiduciary duties to any person by virtue of this
Agreement.
Section 5.2. Certain Rights of Agent. Subject to the
provisions of Section 5.1:
(a) the Agent may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, coupon, security or other paper or document believed by it to
be genuine and to have been signed or presented by the proper party or
parties;
(b) any request, direction, order or demand of the Corporation
mentioned herein shall be sufficiently evidenced by an Officer's Certificate or
Issuer Request and any resolution of the Board of Directors of the
Corporation, as the case may be, may be sufficiently evidenced by a Board
Resolution;
(c) the Agent may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection with respect to any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon in accordance
with such advice or Opinion of Counsel;
(d) the Agent shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, appraisal, bond,
debenture, note, coupon, security or other paper or document, but the Agent,
in its discretion, may make reasonable further inquiry or investigation into
such facts or matters related to the issuance of the [constituent securities],
as the case may be, and, if the Agent shall determine to make such further
inquiry or investigation, it shall be entitled to examine the books, records
and premises of the Corporation, at reasonable times during normal business
hours, personally or by agent or attorney;
(e) the Agent may execute any of the powers hereunder or perform
any duties hereunder either directly or by or through agents or attorneys and
the Agent shall not be responsible for any misconduct or negligence on the
part of any such agent or attorney appointed with due care by it hereunder;
and
(f) the Agent shall not be liable for any action taken or omitted
by it in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Agreement.
Section 5.3. Not Responsible for Recitals or Issuance of
Units. The recitals contained herein, in the Indenture, in the Warrant
Agreement and in the Units, except the Trustee's and Warrant Agent's
certificates of authentication or countersignature, shall be taken as the
statements of the Corporation, and none of the Trustee, Agent or the Warrant
Agent assumes any responsibility for their correctness. The Agent makes no
representations as to the validity or sufficiency of this Agreement or of the
Units. None of the Trustee, Agent or the Warrant Agent shall be accountable
for the use or application by the Corporation of the proceeds with respect to
Units or be responsible for exercising any remedy hereunder on behalf of the
Holders, except as expressly provided in this Agreement.
Section 5.4. May Hold Units. The Agent, the Trustee, the
Warrant Agent, or any other agent of the Corporation, the Trustee, the Warrant
Agent, or the Agent, in its individual or any other capacity, may become the
owner or pledgee of Units and may otherwise deal with the Corporation and
receive, collect, hold and retain collections from the Corporation with the
same rights it would have if it were not such other agent, the Trustee, the
Warrant Agent or the Agent.
Section 5.5. Compensation and Reimbursement. The Corporation
agrees:
(a) to pay to the Agent from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law with regard to the compensation of a trustee of
an express trust);
(b) except as otherwise expressly provided herein, to reimburse the
Agent and any predecessor Agent upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Agent in accordance with
any provision of this Agreement (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to its negligence or
bad faith; and
(c) to indemnify the Agent and any predecessor Agent for, and to
hold it harmless against, any loss, liability or expense incurred without
negligence or bad faith on its part, arising out of or in connection with the
acceptance or administration of this Agreement and its duties hereunder,
including the costs and expenses of defending itself against or investigating
any claim of liability in connection with the exercise or performance of any
of its powers or duties hereunder.
The obligations of the Corporation under this Section to
compensate and indemnify the Agent and any predecessor Agent and to pay or
reimburse the Agent and any predecessor Agent for expenses, disbursements and
advances shall constitute additional indebtedness hereunder and shall survive
the resignation or removal of such Agent or predecessor Agent or the
termination hereof. Such additional indebtedness shall be a senior claim to
that of the Units upon all property and funds held or collected by the Agent as
such, except funds held in trust for the benefit of the Holders of particular
Units, and the Units are hereby subordinated to such senior claim.
Section 5.6. Corporate Agent Required; Eligibility. There
shall at all times be an Agent hereunder which shall be a corporation
organized and doing business under the laws of the United States of America,
any State thereof or the District of Columbia, having, together with its
parent, a combined capital and surplus of at least $50,000,000, subject to
supervision or examination by Federal, State or District of Columbia authority
and willing to act on reasonable terms. If such corporation, or its parent,
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published. The Agent hereunder shall at all
times be the Trustee under the Indenture and the Warrant Agent under the
Warrant Agreement, subject to receipt of an Opinion of Counsel that the same
Person is precluded by law from acting in such capacities. If at any time the
Agent shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article. The Agent may appoint one or more
sub-agents with offices or agencies in a city or cities outside the United
States.
Section 5.7. Resignation and Removal; Appointment of
Successor. (a) No resignation or removal of the Agent and no appointment of a
successor Agent pursuant to this Article shall become effective until the
acceptance of appointment by the successor Agent in accordance with the
applicable requirements of Section 5.8.
(b) The Agent may resign by giving written notice thereof to the
Corporation and the Holders, in accordance with Section 7.6 and Section 7.7,
60 days prior to the effective date of such resignation. The Agent may be
removed at any time upon 60 days' notice by the filing with it of an instrument
in writing signed on behalf of the Corporation and specifying such removal and
the date when it is intended to become effective. If the instrument of
acceptance by a successor Agent required by Section 5.8 shall not have been
delivered to the Agent within 30 days after the giving of such notice of
resignation, the resigning Agent may petition any court of competent
jurisdiction for the appointment of a successor Agent.
(c) If at any time
(i) the Agent shall cease to be eligible under Section 5.6,
or shall cease to be eligible as Trustee under the Indenture or
as Warrant Agent under the Warrant Agreement, and shall fail to
resign after written request therefor by the Corporation or by
any Holder, or
(ii) the Agent shall become incapable of acting with respect
to the Units or shall be adjudged a bankrupt or insolvent, or a
receiver or liquidator of the Agent or of its property shall be
appointed or any public officer shall take charge or control of
the Agent or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (A) the Corporation, by Board Resolution, may
remove the Agent and appoint a successor Agent, or (B) any Holder who has
been a bona fide Holder of a Unit for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Agent and the appointment of a
successor Agent or Agents. Such court may thereupon, after such notice, if
any, as it may deem proper and prescribe, remove the Agent and appoint a
successor Agent.
(d) If the Agent shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Agent for any cause, the
Corporation, by Board Resolution, shall promptly appoint a successor Agent or
Agents (other than the Corporation) and shall comply with the applicable
requirements of Section 5.8. If no successor Agent shall have been so
appointed by the Corporation and accepted appointment in the manner required
by Section 5.8, any Holder who has been a bona fide Holder of a Unit for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a successor
Agent.
(e) The Corporation shall give, or shall cause such successor
Agent to give, notice of each resignation and each removal of the Agent and
each appointment of a successor Agent to all Holders of Units in accordance
with Section 7.7. Each notice shall include the name of the successor Agent
and the address of its Corporate Trust Office.
Section 5.8. Acceptance of Appointment by Successor. (a) In
case of the appointment hereunder of a successor Agent, every such successor
Agent so appointed shall execute, acknowledge and deliver to the Corporation
and to the retiring Agent an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Agent shall become
effective and such successor Agent, without any further act, deed or
conveyance, shall become vested with all the rights, powers, agencies and
duties of the retiring Agent, with like effect as if originally named as Agent
hereunder; but, on the request of the Corporation or the successor Agent, such
retiring Agent shall, upon payment of all amounts due and payable to it
pursuant to Section 5.5, execute and deliver an instrument transferring to
such successor Agent all the rights and powers of the retiring Agent and shall
duly assign, transfer and deliver to such successor Agent all property and
money held by such retiring Agent hereunder. Any retiring Agent shall,
nonetheless, retain a prior claim upon all property or funds held or collected
by such Agent to secure any amounts then due it pursuant to Section 5.5.
(b) Upon request of any such successor Agent, the Corporation shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Agent all such rights, powers and agencies
referred to in paragraph (a) of this Section.
(c) No successor Agent shall accept its appointment unless at the
time of such acceptance such successor Agent shall be eligible under this
Article.
(d) Upon acceptance of appointment by any successor Agent as
provided in this Section, the Corporation shall give notice thereof to the
Holders of Units in accordance with Section 7.7. If the acceptance of
appointment is substantially contemporaneous with the resignation of the
Agent, then the notice called for by the preceding sentence may be combined
with the notice called for by Section 5.7. If the Corporation fails to give
such notice within ten days after acceptance of appointment by the successor
Agent, the successor Agent shall cause such notice to be given at the expense
of the Corporation.
Section 5.9. Merger, Conversion, Consolidation or Succession to
Business. Any corporation into which the Agent may be merged or converted or
with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Agent shall be a party, or
any corporation succeeding to all or substantially all the agency business of
the Agent, shall be the successor of the Agent hereunder, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, provided that such corporation shall be otherwise eligible
under this Article.
[Section 5.10. Tax Compliance. (a) The Company will allocate
__% of the issue price of the Units as premium for the Warrants, based on the
relative fair market values of the [Purchase Contracts][Notes] and the Warrants
at the time of the issuance of the Units, and will allocate __% of the issue
price of the Units to the [Purchase Contracts] [Notes].]
(b) The Corporation by the issuance and sale of any Unit and any
Holder of a Unit by his acceptance thereof agree to (in the absence of any
applicable administrative ruling or judicial determination to the contrary)
treat the Securities that constitute any Unit as separate securities and to
file all United States federal, state and local tax returns consistent with
the treatment of such Unit as constituted by separate securities.
ARTICLE 6
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Section 6.1. Covenant Not to Merge, Consolidate, Sell or Convey
Property Except Under Certain Conditions. The Corporation covenants that it
will not merge or consolidate with any other corporation or sell, convey or
lease all or substantially all of its assets to any Person, firm or
corporation, except that the Corporation may merge or consolidate with, or
sell, convey or lease all or substantially all of its assets to, any other
corporation, provided that (i) the Corporation shall be the continuing
corporation, or the successor corporation (if other than the Corporation)
shall be a corporation organized and existing under the laws of the United
States of America or a state thereof or the District of Columbia and such
corporation shall assume the due and punctual performance and observance of
all of the covenants and conditions of this Agreement to be performed by the
Corporation by supplemental agreement in form satisfactory to the Agent
executed and delivered to the Agent by such corporation, and (ii) neither the
Corporation nor such successor corporation immediately after such merger or
consolidation, or such sale, conveyance or lease shall be in default in the
performance of any such covenant or condition.
Section 6.2. Rights and Duties of Successor Corporation. In
case of any such consolidation, merger, sale or conveyance and upon any such
assumption by the successor corporation, such successor corporation shall
succeed to and be substituted for the Corporation with the same effect as if it
had been named herein as the Corporation. Such successor corporation thereupon
may cause to be signed, and may issue (subject to the provisions of the
Indenture and the Warrant Agreement) either in its own name or in the name of
Morgan Stanley, Dean Witter, Discover & Co. any or all of the [list
constituent securities] issuable hereunder which theretofore shall not have
been signed by the Corporation and delivered to the Agent; and, upon the order
of such successor corporation, instead of the Corporation, and subject to all
the terms, conditions and limitations in this Agreement prescribed, the
Trustee, the Warrant Agent and the Agent shall authenticate, countersign and
deliver, as applicable, any [list constituent securities] that previously
shall have been signed and delivered by the officers of the Corporation to the
Trustee and the Warrant Agent for authentication and countersignature, and any
[list constituent securities] evidencing Units which such successor corporation
thereafter shall cause to be signed and delivered to the Trustee and the
Warrant Agent for such purpose.
In case of any such consolidation, merger, sale, conveyance or
lease such change in phraseology and form (but not in substance) may be made in
the Unit Certificates thereafter to be issued as may be appropriate.
Section 6.3. Opinion of Counsel to Agent. The Agent subject to
Sections 5.1 and 5.2 may receive an Opinion of Counsel as conclusive evidence
that any such consolidation, merger, sale, conveyance or lease, and any such
assumption, complies with the provisions of this Article.
ARTICLE 7
MISCELLANEOUS PROVISIONS
Section 7.1. Amendments. (a) This Agreement and the terms of
the Units may be amended (by means of an agreement supplemental hereto or
otherwise) by the Corporation and the Agent, without the consent of the
Holders, (i) for the purpose of curing any ambiguity, or of curing, correcting
or supplementing any defective or inconsistent provision contained herein or
therein, (ii) to evidence and provide for the acceptance of appointment
hereunder by a successor Agent with respect to the Units or (iii) in any other
manner which the Corporation may deem necessary or desirable and which will
not adversely affect the interests of the affected Holders.
(b) The Corporation and the Agent may modify or amend this
Agreement (by means of an agreement supplemental hereto or otherwise) with the
consent of Holders holding not less than a majority in number of the then
outstanding Units for any purpose; provided, however, that no such
modification or amendment that materially and adversely affects the exercise
rights of the affected Holders or reduces the percentage of the number of
outstanding Units, the consent of the Holders of which is required for
modification or amendment of this Agreement, may be made without the consent
of each Holder affected thereby. In the case of Units evidenced by one or
more Global Unit Certificates, the Corporation and the Agent shall be entitled
to rely upon certification in form satisfactory to each of them that any
requisite consent has been obtained from holders of beneficial ownership
interests in the relevant Global Unit Certificate. Such certification may be
provided by participants of the Depositary acting on behalf of such beneficial
owners of Units, provided that any such certification is accompanied by a
certification from the Depositary as to the Unit holdings of such
participants.
(c) Upon the request of the Corporation, accompanied by a copy of a
Board Resolution (which Board Resolution may provide general terms or
parameters for such action and may provide that the specific terms of such
action may be determined in accordance with or pursuant to an Officer's
Certificate) authorizing the execution of any such amendment, and upon the
filing with the Agent of evidence of the consent of Holders as aforesaid, the
Agent shall join with the Corporation in the execution of such amendment
unless such amendment affects the Agent's own rights, duties or immunities
under this Agreement or otherwise, in which case the Agent may in its
discretion, but shall not be obligated to, enter into such amendment. In
executing, or accepting the additional duties created by, any amendment
permitted by this Section, the Agent shall be entitled to receive, and shall be
fully protected in relying upon, an Opinion of Counsel stating that the
execution of such amendment is authorized or permitted by this Agreement. The
fact and date of the execution of any consent of Holders, or the authority of
the Person executing the same, may be proved in any manner which the Agent
(with the approval of the Corporation) deems sufficient.
(d) It shall not be necessary for the consent of the Holders under
this Section to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the substance thereof.
(e) The Corporation may set a record date for purposes of
determining the identity of Holders of Units entitled to consent to any action
by consent authorized or permitted hereby. Such record date shall be the later
of 30 days prior to the first solicitation of such consent or the date of the
most recent list of Holders of Units furnished to the Agent. The ownership of
Units shall be proved by the Unit Register.
Section 7.2. Incorporators, Stockholders, Officers and
Directors of the Corporation Immune from Liability. No recourse under or upon
any obligation, covenant or agreement contained in this Agreement, or in any
Warrant Agreement or any [list constituent securities], or because of any
indebtedness evidenced thereby, shall be had against any incorporator, or
against any past, present or future stockholder, officer, attorney-in-fact or
director, as such, of the Corporation or of any successor corporation, either
directly or through the Corporation or any successor corporation, under any
rule of law, statute or constitutional provision or by the enforcement of any
assessment or penalty or by any legal or equitable proceeding or otherwise, all
such liability being expressly waived and released by the acceptance of the
Units by the Holders thereof and as part of the consideration for the issue
thereof, provided that nothing in this Article shall impair the obligations,
covenants and agreements of the Corporation contained in this Agreement and
in any [list constituent securities] constituting a part of the Units.
Section 7.3. Compliance Certificates and Opinions. Except as
otherwise expressly provided by this Agreement, upon any application or
request by the Corporation to the Agent to take any action under any provision
of this Agreement, the Corporation, as applicable, shall furnish to the Agent
an Officer's Certificate stating that all conditions precedent, if any,
provided for in this Agreement relating to the proposed action have been
complied with and an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent, if any, have been complied with,
except that in the case of any such application or request as to which the
furnishing of such documents is specifically required by any provision of this
Agreement relating to such particular application or request, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Agreement shall include:
(i) a statement that each individual signing such
certificate or opinion has reached such covenant or condition and
the definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(iii) a statement that, in the opinion of each such
individual, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to
whether or not such covenant or condition has been complied with;
and
(iv) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 7.4. Form of Documents Delivered to Agent. In any case
where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may
certify or give an opinion with respect to some matters and one or more other
such Persons as to other matters, and any such Person may certify or give an
opinion as to such matters in one or several documents.
Any certificate, statement or opinion of an officer or counsel
of or for the Corporation may be based, insofar as it relates to legal
matters, upon a certificate or opinion of, or representations by, counsel,
unless such officer knows, or in the exercise of reasonable care should know,
that the certificate or opinion or representations with respect to the matters
upon which his certificate, statement or opinion is based are erroneous. Any
such certificate, statement or opinion may be based, insofar as it relates to
factual matters, upon a certificate, statement or opinion of, or
representations by, an officer or officers of the Corporation, as applicable,
stating that the information with respect to such factual matters is in the
possession of the Corporation, unless such counsel knows, or in the exercise
of reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Agreement, they may, but need not, be consolidated
and form one instrument.
Section 7.5. Maintenance of Office or Agency. So long as
Units are authorized for issuance pursuant to this Agreement or are outstanding
hereunder, the Corporation will maintain in the Borough of Manhattan, The City
of New York, an office or agency where Units may be presented or surrendered
for delivery, where Units may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Corporation in respect
of Units and this Agreement may be served. The Corporation hereby initially
designates the Agent as its office or agency in the Borough of Manhattan, The
City of New York, for each of said purposes. The Corporation will give prompt
written notice to the Agent of the location, and any change in the location,
of such office or agency. If at any time the Corporation shall fail to
maintain any such required office or agency or shall fail to furnish the Agent
with the name and address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the Agent, and
the Corporation hereby appoints the Agent as its agent to receive all such
presentations, surrenders, notices and demands.
The Corporation may also from time to time designate one or more
other offices or agencies where Units may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Corporation of its obligations to maintain offices or agencies
provided for in this Section. The Corporation will give prompt written notice
to the Agent of any such designation or rescission and of any change in the
location of any such other office or agency.
Section 7.6. Notices, Etc. Any request, demand, authorization,
direction, notice, consent, waiver or Act of Holders or other document
provided or permitted by this Agreement to be made upon, given or furnished
to, or filed with,
(a) the Agent, by any Holder or by the Corporation shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if made, given, furnished or filed in writing and personally
delivered or mailed, first-class postage prepaid, to the Agent at its
Corporate Trust Office, Attention: Corporate Trustee Administration
Department, or at any other address previously furnished in writing by the
Agent to the Holders and the Corporation, or
(b) the Corporation by the Agent or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if made, given, furnished or filed in writing and personally
delivered or mailed, first-class postage prepaid, addressed to the Corporation
at 1585 Broadway, New York, New York 10036, Attention: Treasurer, or at any
other address previously furnished in writing to the Agent by the Corporation.
Section 7.7. Notices to Holders; Waiver. The Corporation may
cause notice to be given to the Holders by providing the Agent with a form of
notice to be distributed by (a) in the case of Definitive Units, the Agent to
the Holders by first class mail, or (b) in the case of Global Units, the
Depositary to its participants in accordance with the custom and practices of
the Depositary. Where this Agreement provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Agent, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
Section 7.8. Effect of Headings and Table of Contents. The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 7.9. Successors and Assigns. All covenants and
agreements in this Agreement, the Units and the Unit Certificates by the
Corporation shall bind its successors and assigns, whether so expressed or not.
Section 7.10. Separability Clause. In case any provision in
this Agreement or in the Units or Unit Certificates shall be invalid, illegal
or unenforceable, the validity, legality and enforceability of the remaining
provisions hereof and thereof shall not in any way be affected or impaired
thereby.
Section 7.11. Benefits of Agreement. Nothing in this
Agreement or in the Units, Unit Certificates, the Indenture, the Warrant
Agreement, [list constituent securities], express or implied, shall give to
any Person, other than the parties hereto and their successors hereunder, any
benefits or any legal or equitable right, remedy or claim under this
Agreement. The Holders from time to time shall be bound by all of the terms
and conditions hereof and of the Indenture, the Units, the Warrant Agreement,
[list constituent securities] evidenced by the Units, by their acceptance of
delivery of such Units.
Section 7.12. Governing Law. This Agreement and the Units
shall be governed and construed in accordance with the laws of the State of New
York.
Section 7.13. Counterparts. This Agreement may be executed in
any number of counterparts by the parties hereto on separate counterparts,
each of which, when so executed and delivered, shall be deemed an original,
but all such counterparts shall together constitute one and the same
instrument.
Section 7.14. Inspection of Agreement. A copy of this
Agreement shall be available at all reasonable times during normal business
hours at the Corporate Trust Office of the Agent for inspection by any Holder.
IN WITNESS WHEREOF, the Corporation, the Agent, the Trustee and
the Warrant Agent have duly executed this Agreement as of the day and year
first above set forth.
MORGAN STANLEY, DEAN WITTER,
DISCOVER & CO.
By:
-----------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
as Agent
By:
-----------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
as Trustee and Paying Agent under the
Indenture
By:
-------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
as Warrant Agent under the Warrant
Agreement
By:
-----------------------------------
Name:
Title:
EXHIBIT A
[[FORM OF UNIT CERTIFICATE]
[FACE]
[IF THE UNIT CERTIFICATE IS TO BE A GLOBAL UNIT CERTIFICATE,
INSERT--This Unit Certificate is a global Unit Certificate within the meaning
of the Unit Agreement hereinafter referred to and is registered in the name of
The Depository Trust Company (the "Depositary") or a nominee of the
Depositary. Unless and until it is exchanged in whole or in part for Units in
definitive registered form, this Unit Certificate may not be transferred except
as a whole by the Depositary to a nominee of the Depositary or by a nominee
of the Depositary to the Depositary or another nominee of the Depositary or
by the Depositary or any such nominee to a successor Depositary or a nominee
of such successor Depositary).
Unless this Unit Certificate is presented by an authorized
representative of The Depositary (55 Water Street, New York) to Morgan
Stanley, Dean Witter, Discover & Co. or its agent for registration of
transfer, exchange or payment, and any Unit issued is registered in the name
of Cede & Co. or such other name as requested by an authorized representative
of the Depositary and any payment hereon is made to Cede & Co. or such other
entity as is requested by an authorized representative of the Depositary, ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.]
UNIT CERTIFICATE
(issuable in integral multiples of ________ Units)
Evidencing the Ownership of and Rights
of the Holder under [Separable] Units [Mandatorily] Exchangeable
for _____________________________ Consisting of
_____________________ and
________________________
Certificate No. _____Number of Units _________
This Unit Certificate certifies that ______________________
(the "Holder"), or registered assigns, is the registered owner of [ ( )
Units].
Each Unit represents ownership by the Holder of __________.
[INSERT PURCHASE CONTRACT, NOTE AND WARRANT
CERTIFICATE, AS APPLICABLE]
- ------------------------------------------------------------------------------
Reference is hereby made to the further provisions of this certificate
set forth on the succeeding pages hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
- ------------------------------------------------------------------------------
[IF UNIT IS A DEFINITIVE UNIT, INSERT -
[FORM OF ASSIGNMENT]
FOR VALUE RECEIVED, the undersigned assigns and transfers the
Unit(s) represented by this Certificate to:
_________________ (Insert assignee's social security or tax
identification number)
(Insert address and zip code of assignee)
and irrevocably appoints
agent to transfer this Unit Certificate on the books of the
Corporation. The agent may substitute another to act for him or her.
Date:
Signature(s):
-------------------------------------------------------------
-------------------------------------------------------------
(Sign exactly as your name appears on the other side of this
Certificate)
NOTICE: The signature(s) should be guaranteed by an eligible
guarantor institution (banks, stockbrokers, savings and loan associations and
credit unions with membership in an approved signature guarantee medallion
program), pursuant to S.E.C. Rule 17Ad-15.]
[Letterhead of Brown & Wood LLP]
Exhibit 5
March 9, 1998
Morgan Stanley, Dean Witter, Discover & Co.
1585 Broadway
New York, NY 10036
Ladies and Gentlemen:
We have acted as counsel to Morgan Stanley, Dean Witter, Discover & Co.,
a Delaware corporation (the "Company"), in connection with the preparation and
filing of a registration statement on Form S-3 (as it may be amended or
supplemented from time to time, the "Registration Statement") under the
Securities Act of 1933, as amended (the "Securities Act"), with respect to
$8,000,000,000 aggregate initial offering price of the following securities
(collectively, the "Securities"): (i) debt securities ("Debt Securities"),
(ii) warrants to purchase Debt Securities ("Debt Warrants") or to purchase or
sell (a) securities of an entity unaffiliated with the Company, a basket of
such securities, an index or indices of such securities or any combination of
the above, (b) currencies or composite currencies or (c) commodities
("Universal Warrants," and together with Debt Warrants, the "Warrants"), (iii)
purchase contracts ("Purchase Contracts") requiring the holders thereof to
purchase or sell (a) securities of an entity unaffiliated with the Company, a
basket of such securities, an index or indices of such securities or any
combination of the above, (b) currencies or composite currencies or (c)
commodities, (iv) Debt Securities, Purchase Contracts and Warrants or any
combination thereof that may be offered in the form of Units ("Units"), (v)
shares of the Company's preferred stock, par value $0.01 per share ("Preferred
Stock"), to be issued from time to time in one or more series and (vi) an
indeterminate number of depositary shares representing fractional interests in
shares of the Preferred Stock (the "Depositary Shares").
The Debt Securities and certain pre-paid Purchase Contracts ("Pre-paid
Purchase Contracts"), if any, are to be issued from time to time as either (a)
senior indebtedness of the Company under an indenture dated as of April 15,
1989, as supplemented by a First Supplemental Senior Indenture dated as of May
15, 1991 and a Second Supplemental Senior Indenture dated as of April 15,
1996, between Morgan Stanley Group Inc. ("Morgan Stanley") and The Chase
Manhattan Bank (formerly known as Chemical Bank), as trustee (the "Senior Debt
Trustee"), and a Third Supplemental Senior Indenture dated as of June 1, 1997
(the "Third Supplemental Senior Indenture") between the Company (as successor
to Morgan Stanley) and the Senior Debt Trustee (such indenture as so
supplemented the "Senior Indenture") or (b) subordinated indebtedness of the
Company under an indenture dated as of April 15, 1989, as supplemented by a
First Supplemental Subordinated Indenture dated as of May 15, 1991 and a
Second Supplemental Subordinated Indenture dated as of April 15, 1996, between
Morgan Stanley and The First National Bank of Chicago, as trustee (the
"Subordinated Debt Trustee"), and a Third Supplemental Subordinated Indenture
dated as of June 1, 1997 (the "Third Supplemental Subordinated Indenture" and,
together with the Third Supplemental Senior Indenture, the "Third Supplemental
Indentures") between the Company (as successor to Morgan Stanley) and the
Subordinated Debt Trustee (such indenture as so supplemented the "Subordinated
Indenture" and, together with the Senior Indenture, the "Indentures"). The
Debt Warrants, if any, will be issued under a debt warrant agreement to be
entered into between the Company and a debt warrant agent (the "Debt Warrant
Agreement"). The Universal Warrants, if any, will be issued under a Universal
Warrant Agreement to be entered into between the Company and The Chase
Manhattan Bank, as warrant agent (the "Universal Warrant Agreement"). The
Purchase Contracts and Units, if any, will be issued under a unit agreement to
be entered into among the Company, The Chase Manhattan Bank as unit agent and
the holders from time to time of the Units (the "Unit Agreement"). Depositary
Shares representing fractional interests in shares of Preferred Stock will be
issued under a preferred stock deposit agreement to be entered into among the
Company, The Bank of New York, as depositary, and the holders from time to
time of depositary receipts issued thereunder (the "Deposit Agreement"). The
forms of the Indentures, the Debt Warrant Agreement, the Deposit Agreement and
the Securities are filed or incorporated by reference as exhibits to the
Registration Statement.
In rendering this opinion, we have examined the originals or copies,
certified to our satisfaction, of such corporate records and other documents
and certificates as we deemed necessary. In such examination, we have assumed
the genuineness of all signatures, the authenticity of all documents submitted
to us as originals, the conformity to the original documents of all documents
submitted to us as copies and the authenticity of the originals of all such
latter documents. In addition, in rendering this opinion, we have assumed the
authorization, execution and delivery of the Indentures, the Debt Warrant
Agreement and the Deposit Agreement by all parties (including Morgan Stanley)
other than the Company. As to any facts material to this opinion, we have,
when relevant facts were not independently established by us, relied upon the
aforesaid records, certificates and documents.
Based upon the foregoing, and having regard for such legal
considerations as we have deemed relevant, we are of the opinion that:
(i) the Third Supplemental Indentures, the Debt Warrant Agreement, the
Universal Warrant Agreement, the Unit Agreement, the Deposit Agreement and the
Securities have been duly authorized by the Company;
(ii) when the Debt Warrant Agreement, the Universal Warrant Agreement
and the Unit Agreement have been duly executed and delivered by the Company
and the Debt Securities, the Debt Warrants, the Universal Warrants, the
Purchase Contracts and the Units have been duly executed and issued in
accordance with the provisions of the applicable Indenture, the Debt Warrant
Agreement, the Universal Warrant Agreement and the Unit Agreement,
respectively, and duly paid for by the purchasers thereof in the manner and on
the terms described in the Registration Statement (after it is declared
effective), all required corporate action will have been taken with respect to
the issuance and sale of the Debt Securities, the Debt Warrants, the Universal
Warrants, the Purchase Contracts and the Units and such Securities will have
been validly issued and will constitute valid and binding obligations of the
Company, enforceable in accordance with their terms; and
(iii) when the shares of Preferred Stock and, if applicable, the
Depositary Shares have been duly issued and paid for by the purchasers thereof
in the manner and on the terms described in the Registration Statement (after
it is declared effective), such shares of Preferred Stock will be duly and
validly issued, fully paid and nonassessable and, if applicable, such
Depositary Shares will represent legal and valid interests in the corresponding
shares of Preferred Stock.
The opinions set forth herein are limited to matters of the laws of the
State of New York and the General Corporation Law of the State of Delaware.
Any opinion expressed herein as to enforceability is qualified in that such
enforceability may be limited by bankruptcy, insolvency, reorganization,
liquidation, moratorium and other similar laws affecting creditors' rights
generally and is subject to general principles of equity, regardless of
whether such enforceability is considered in a proceeding in equity or at law.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our firm appearing under the
caption "Legal Matters" in the related Prospectus. In giving such consent, we
do not thereby admit that we are in the category of persons whose consent is
required under Section 7 of the Securities Act.
Very truly yours,
/s/ Brown & Wood LLP
Exhibit 23-a
INDEPENDENT AUDITORS' CONSENT
We consent to the incporporation by reference in this Amendment No. 1 to
Registration Statement No. 333-46935 on Form S-3 of our reports dated January
23, 1998, appearing in and incorporated by reference in the Annual Report
on Form 10-K of the Registrant for the fiscal year ended November 30, 1997
(which makes reference to the audit of Morgan Stanley Group Inc. at
November 39, 1996 and for each of the two fiscal years in the period ended
NOvember 30, 1996 by other auditors); and to the reference to us under the
heading "Experts" in the Prospectus, which is part of this Registration
Statement.
/s/ Deloitte & Touche LLP
New York, New York
March 9, 1998
Exhibit 23-b
Consent of Independent Auditors
We consent to the reference to our firm under the caption "Experts" in
Amendment No. 1 to the Registration Statement on Form S-3 and related
Prospectus of Morgan Stanley, Dean Witter, Discover & Co. (the "Company")
for the registration of $12,501,044,143 of Debt Securities, Warrants,
Preferred Stock, Purchase Contracts, and Units of the Company and to the
incorporation by reference therein of our report with respect to the
consolidated financial statements and financial statement schedule of
Morgan Stanley Group Inc. dated May 27, 1997 included in the Company's Form
10-K for the fiscal year ended November 30, 1997, filed with the Securities
and Exchange Commission.
/s/ ERNST & YOUNG LLP
------------------------
ERNST & YOUNG LLP
New York, New York
March 9, 1998
Exhibit 23-c
[Letterhead of Brown & Wood LLP]
March 9, 1998
VIA ELECTRONIC FILING
Securities and Exchange Commission
450 Fifth Street, N.W.
Judiciary Plaza
Washington, DC 20549
Re: Morgan Stanley, Dean Witter, Discover & Co. Amendment No. 1 to
Registration Statement on Form S-3 Relating to Debt Securities
Warrants, Preferred Stock, Depositary Shares, Purchase Contracts
and Units
----------------------------------------------------------------
Ladies and Gentlemen:
On behalf of Morgan Stanley, Dean Witter, Discover & Co. (the
"Company"), transmitted herewith for filing with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended
(the "Securities Act"), is Amendment No. 1 ("Amendment No. 1") to Registration
Statement on Form S-3 (Registration No. 333-46935) under the Securities Act
relating to up to $8,000,000.00 of debt securities, warrants, preferred stock,
depositary shares, purchase contracts and units (collectively, the
"Securities") of the Company to be offered on a delayed or continuous basis
pursuant to the provisions of Rule 415 under the Securities Act. As
previously discussed with members of the staff of the Commission, Amendment
No. 1 also includes both (i) the remaining capacity of the Company's existing
universal shelf registration statement (registration no. 333-27919) and (ii)
the remaining capacity of the Company's existing debt shelf registration
statements (registration nos. 33-89748 and 333-07947).
Filing fees relating to the registration of the Securities in the amount
of $2,360,000 were previously paid in connection with the initial filing of
the Registration Statement.
The Company and Morgan Stanley & Co. Incorporated ("MS&Co."), Dean
Witter Reynolds Inc. ("DWR") and Morgan Stanley & Co. International Limited
("MSIL"), as Underwriters, may make oral requests for acceleration of
effectiveness of the Registration Statement. The Company, MS&Co., DWR and
MSIL are aware of their respective obligations under the Securities Act.
Please direct any communications relating to this filing to the
undersigned at (212) 839-5429.
Very truly yours,
/s/ Michael T. Kohler
